The Common Law Tradition

1
The Common Law Tradition

• Stare decisis
• Law made by judges, statutes
• Criminal vs. Civil Law
• - public interests vs. individual interests (1)
• - basis for liability (2, 3)
• - the burden of proof
• - remedies available

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Tort Law

• An infringement or invasion of a personal right
  which the court has chosen to protect
• An instrument for apportioning losses between
  the unfortunate victim, the person whose act
  caused the harm, and others

3
Development of the Tort

• For a society to function, people should not
  intentionally harm one another
• Reasonable care needs to be exercised in all
  daily activities
• Blameless victims should not be unduly burdened
• Consequential injuries direct injuries

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Basis for Tort Liability

• FAULT Strict (4) vs. Vicarious (5, 6)
• Negligence
• - duty of care (7)
• - breach of duty (reasonableness test) (8)
• - damage occurred (9)
• - remoteness of damage (10)
• - contribution (12)

5
Professionals Duty to Care

• Contractual Duty
• Fiduciary Duty (13)
• Product Liability (14)
• Negligent Misrepresentation
• Standards of Practice (15)
• Implications of Professional Status

6
Case 1

• X is a pharmacist. One night while driving under
  the influence of alcohol, X crashes into Ys car,
  causing significant damage to Ys spinal column.
  As a result, Y is no longer able to walk without
  the aid of a walker, and significant pain.

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Case 2 3

• Case 2
• A is a pharmacist who carelessly drops a log on a
  road and does not bother to remove it. After
  dark, Bs horse trips over the log and is
  seriously injured.
• Case 3
• A is a Scots pharmacist who careless tosses a log
  at a horse, causing serious injury.

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Case 4

• A landowner stores water in a large cistern. The
  cistern is accidentally punctured by a visitors
  truck, thereby flooding and damaging a
  neighbours building. Evidence shows the
  landowner did everything reasonably expected to
  maintain the cistern against damage.

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Case 5

• X is a pharmacist-owner. Y is a staff
  pharmacist. Y dispenses the wrong drug to Z,
  even though X has provided a reasonable training
  program and a work environment that meets all
  required standards of practice.

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Case 6

• X is a pharmacist-owner. Y is a staff
  pharmacist. A is Ys technician. A dispenses
  the wrong drug to Z.
• Would the case be different if Y were a relief
  pharmacist?

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Case 7

• A motorcyclist collides with an automobile and
  later dies from the injuries. At the time of the
  accident a woman who is 5 months pregnant sees
  the accident. Medical evidence agrees that the
  shock of witnessing the accident probably lead to
  her child being stillborn. Can she bring a suit
  against the estate of the motorcyclist?

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Case 8 Case 9

• Case 8
• X is a pharmacist owner and dispenses the wrong
  drug to Z
• Case 9
• X is a pharmacist owner and dispenses the wrong
  drug to Z. Z suffers an anaphylactic reaction
  but does not die.

13
Case 11

• Z takes a drug dispensed by X. A week later, Z
  develops an anaphylactic reaction and suffers
  damage. Z produces evidence that the drug can
  produce delayed anaphylactic responses.

14
Case 12

• X dispenses the wrong drug to Y. Y comments to a
  friend, Oh, this doesnt look like the regular
  drug I always get. Y dies 48 hours later.

15
Case 13a

• X, a pharmacist, tells Y, a patient, that
  itchiness on his leg is likely due to poison oak.
  72 hours later, Y dies of necrotizing fasciitis.

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Case 13b

• X advises Y that the itchiness on his leg may be
  due to poison oak. X suggests calamine lotion,
  but cautions that if the itching hasnt resolved
  in 24-26 hours, to contact a physician. 72 hours
  later, Y dies of necrotizing fasciitis.

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Case 14

• X sells a dark green bottle of ginger beer to Y.
  After drinking half the bottle, Y becomes
  violently ill. Upon examination, the bottle is
  discovered to contain the remnants of a
  decomposed snail.
• Donohue v. Stephenson

18
Riff v. Morgan Pharmacy

• X dispenses Cafergot suppositories for Y.
  Instructions were 1 supp q4h for headache. No
  additional information was given from either MD
  or RPh. The package insert clearly stated that
  no more than 2 supps/headache and 5 supps/week
  were to be used. Patient subsequently suffered
  harm.