Troppi v. Scarf

• Decision Date: 26 February 1971
• Docket Number: Docket No. 6992,No. 1,1
• Citation: 187 N.W.2d 511,31 Mich.App. 240
• Parties: John E. TROPPI and Dorothy M. Troppi, his wife, Plaintiffs- Appellants, v. Frank H. SCARF, d/b/a Scarf's Drug Store, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 511

187 N.W.2d 511

31 Mich.App. 240

John E. TROPPI and Dorothy M. Troppi, his wife, Plaintiffs- Appellants, v. Frank H. SCARF, d/b/a Scarf's Drug Store, Defendant-Appellee.

Docket No. 6992.

Court of Appeals of Michigan, Division No. 1.

Feb. 26, 1971.

Leave to Appeal Denied June 3, 1971.

Released for Publication June 10, 1971.

Donald M. Cutler, Southfield, for plaintiffs-appellants.

Sullivan, Sullivan, Ranger & Ward, Detroit, for defendant-appellee.

Before LEVIN, P.J., and J. H. GILLIS and BRONSON, JJ.

LEVIN, Presiding Judge.

In this case we consider the civil liability of a pharmacist who negligently supplied the wrong drug to a married woman who had ordered an oral contraceptive and, as a consequence, became pregnant and delivered a normal, healthy child.

I.

A summary judgment was entered dismissing the complaint of the plaintiffs, John and Dorothy Troppi, on the ground that it does not state a claim upon which relief can be granted. In our appraisal of the correctness of the trial judge's ruling we accept as true plaintiffs' factual allegations.

In August 1964, plaintiffs were the parents of seven children, ranging in age from six to sixteen years of age. John Troppi was 43 years old, his wife 37.

While pregnant with an eighth child, Mrs. Troppi suffered a miscarriage. She and her husband consulted with their physician and decided to limit the size of their family. The physician prescribed an oral contraceptive, Norinyl, as the most desirable means of insuring that Mrs. Troppi would bear no more children. He telephoned the prescription to defendant, Frank H. Scarf, a licensed pharmacist. Instead of filling the prescription, Scarf negligently supplied Mrs. Troppi with a drug called Nardil, a mild tranquilizer.

Believing that the pills she had purchased were contraceptives, Mrs. Troppi took them on a daily basis. In December 1964, Mrs. Troppi became pregnant. She delivered a well-born son on August 12, 1965.

Plaintiffs' complaint alleges four separate items of damage: (1) Mrs. Troppi's lost wages; (2) medical and hospital expenses; (3) the pain and anxiety of pregnancy and childbirth; and (4) the economic costs of rearing the eighth child.

In dismissing the complaint the judge declared that whatever damage plaintiffs suffered was more than offset by the benefit to them of having a healthy child.

II.

Contraception, conjugal relations, and childbirth are highly charged subjects. It is all the more important, then, to emphasize that resolution of the case before us requires no intrusion into the domain of moral philosophy. At issue here is simply the extent to which defendant is civilly liable for the consequences of his negligence. In reversing and remanding for trial, we go no further than to apply settled common-law principles.

We begin by noting that the fundamental conditions of tort liability are present here. The defendant's conduct constituted a clear breach of duty. A pharmacist is held to a very high standard of care in filling prescriptions. When he negligently supplies a drug other than the drug requested, he is liable for resulting harm to the purchaser.

As early as 1882, the Michigan Supreme Court recognized that a pharmacist's negligence in providing the wrong drug is actionable. In Brown v. Marshall (1882), 47 Mich. 576, 583, 11 N.W. 392, 395, plaintiff requested Epsom salts from her druggist, who instead sold her zinc sulphate. Plaintiff suffered severe burns. The Court declared:

'The case it must be conceded is one in which a very high degree of care may justly be required. People trust not merely their health but their lives to the knowledge, care and prudence of druggists, and in many cases a slight want of care is liable to prove fatal to some one. It is therefore proper and reasonable that the care required shall be proportioned to the danger involved.'

We assume, for the purpose of appraising the correctness of the ruling dismissing the complaint, that the defendant's negligence was a cause in fact of Mrs. Troppi's pregnancy. ¹ The possibility that she might become pregnant was certainly a foreseeable consequence of the defendant's failure to fill a prescription for birth control pills; we therefore, could not say that it was not a proximate cause of the birth of the child. ²

Setting aside, for the moment, the subtleties of the damage question, it is at least clear that the plaintiffs have expended significant sums of money as a direct and proximate result of the defendant's negligence. The medical and hospital expenses of Mrs. Troppi's confinement and her loss of wages arose from the defendant's failure to fill the prescription properly. Pain and suffering, like that accompanying childbirth, have long been recognized as compensable injuries.

This review of the elements of tort liability points up the extraordinary nature of the trial court's holding that the plaintiffs were entitled to no recovery as a matter of law. We have here a negligent, wrongful act by the defendant, which act directly and proximately caused injury to the plaintiffs.

What we must decide is whether there is justification here for a departure from generally applicable, well-established principles of law:

'The general rule of damages in an action of tort is that the wrongdoer is liable for all injuries resulting directly from the wrongful acts, whether they could or could not have been foreseen by him, provided the particular damages in respect to which he proceeds are the legal and natural consequences of the wrongful act imputed to the defendant, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated. Remote, contingent, or speculative damages will not be considered in conformity to the general rule above laid down.' Van Keulen & Winchester Lumber Co. v. Manistee & N.E.R. Co. (1923), 222 Mich. 682, 687, ³ 193 N.W. 289, 290.

III.

The trial judge based his decision upon what he perceived to be the law 'announced by a majority of the courts in this country.' But, as yet, no appellate court has passed upon the liability of a pharmacist for negligently dispensing oral contraceptives. Several cases have, indeed, dealt with the liability of physicians for failure to exercise due care in the therapeutic or elective sterilization of patients. Because the elements of damage in these cases correspond to some of the damages prayed for here, the decisions deserve scrutiny.

In Christensen v. Thornby (1934), 192 Minn. 123, 255 N.W. 620, 93 A.L.R. 570, a physician had warned that the plaintiff's wife might not survive the birth of another child. Plaintiff consented to a sterilization operation which the defendant surgeon performed. Although the surgeon represented that the operation was successful, the plaintiff's wife subsequently became pregnant and delivered a healthy child. The plaintiff sued for the medical expenses and his anxiety occasioned by fears for his wife's health.

The Minnesota Supreme Court affirmed an order of the trial court sustaining defendant's demurrer upon two grounds. The first was that since the plaintiff had sued for deceit, not negligence, proof of fraudulent intent was required. Second, the plaintiff had suffered no damage (p. 126, 255 N.W. at 622):

'The purpose of the operation was to save the wife from the hazards to her life which were incident to childbirth. It was not the alleged purpose to save the expense incident to pregnancy and delivery. The wife has survived. Instead of losing his wife, the plaintiff has been blessed with the fatherhood of another child.'

That case, is, of course, distinguishable from the one before us. The plaintiff husband in Christensen made no claim that the child itself or the economic consequences of its birth were unwanted. The operation was directed at the threat to his wife's health. Since her health remained unimpaired, no damage was suffered. That the husband could not have foreseen that his wife would emerge unscathed and his anxiety was therefore quite justified was a factor the court did not discuss.

In Shaheen v. Knight (Pa.1957), 11 Pa.Dist. & Co.R.2d 41, 45, 46, a Pennsylvania Nisi prius court ruled that a physician who violated his promise to perform an effective, elective sterilization operation was not liable for the consequences of his breach of contract. Plaintiff, the father of four children, wanted no more. As a result of an ineffective sterilization, plaintiff was able to impregnate his wife, who delivered a healthy baby. After finding defendant in breach of contract, the court said:

'Defendant argues, however, and pleads, that plaintiff has suffered no damage. We agree with defendant. The only damages asked are the expenses of rearing and educating the unwanted child. We are of the opinion that to allow damages for the normal birth of a normal child is foreign to the universal public sentiment of the people.

'Many consider the sole purpose of marriage a union for having children. * * *

'To allow damages in a suit such as this would mean that the physician would have to pay for the fun, joy and affection which plaintiff Shaheen will have in the rearing and educating of this, (plaintiff's) fifth child. Many people would be willing to support this child were they given the right of custody and adoption, but according to plaintiff's statement, plaintiff does not want such. He wants to have the child and wants the doctor to support it. In our opinion to allow damages would be against public policy.'

Underlying the Shaheen opinion are two principal ideas. The first is that the birth of a healthy child confers such an undoubted benefit upon the plaintiff as to outweigh, as a matter of law, the expenses of delivering and rearing the child. The second is that if the child is really unwanted, plaintiff has a duty to place him for adoption, in effect to mitigate damages. We defer for the moment our evaluation of these concepts, while noting their relevance...