Huggins v. Longs Drug Stores California, Inc.

KENNARD, J., Dissenting.

When a pharmacy writes incorrect instructions on medication for an infant to be administered by the infant’s parent, *136and the parent administers the medication to the infant, thereby causing injury, is the parent a “direct victim” of the pharmacy’s negligence, and thus able to recover damages for negligent infliction of emotional distress? The majority holds that the parent is not a direct victim.

For the reasons expressed by Justice Mosk, I disagree. I write separately to explain why, in my view, the physical and emotional realities of a parent’s administration of prescription medicine to an infant warrant recovery, and why the majority’s policy reasons for denying recovery are not persuasive.

Background

Plaintiffs Barbie and Robert Huggins are the parents of Kodee Huggins. When Kodee was two months old he developed an ear infection, for which a doctor prescribed a drug. The prescription was filled by defendant Longs Drug Stores California, Inc. The pharmacist incorrectly indicated on the instructions that the medication should be administered at five times the prescribed dosage. Thereafter, Barbie Huggins, and possibly Robert Huggins as well, gave Kodee the medication in the dosage indicated by the pharmacist, allegedly causing severe injury. The injury to Kodee, however, did not manifest itself when the parents administered the medication, but only later, when the infant was in his grandmother’s care and the parents were not present. The parents claimed that the knowledge of their administration of the medicine to the child caused them severe emotional distress.

Plaintiffs’ complaint alleged causes of action for negligent infliction of emotional distress on both “bystander” and “direct victim” theories. The child is not a party to this action; his claim was resolved by arbitration. Defendant moved for summary judgment or, alternatively, summary adjudication of issues. The trial court granted the motion, and plaintiffs appealed. In a published opinion, the Court of Appeal reversed, holding that although the parents could not recover on the bystander theory, they should be allowed to proceed to trial on the direct victim theory. Defendant successfully sought review in this court. The bystander theory is not before us.

Discussion

In “direct victim” cases, damages “are sought as a result of a breach of duty owed the plaintiff that is ‘assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.’ ” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073 [9 Cal.Rptr.2d 615, 831 P.2d 1197].) In essence, the defendant in this case claims that its duty of care was owed solely to the infant, and that it owed no *137duty of care to the parent who would administer the medication for which it provided instructions.

The scope of a pharmacist’s duties includes not just providing prescribed medication, but also providing a correct label containing “directions for the use of the drug.” (Bus. & Prof. Code, § 4047.5, subd. (b).) At the time the prescription in this case was filled, regulations of the State Board of Pharmacy required that a pharmacist provide “his or her patient with consultation upon request, and whenever the pharmacist deems it warranted. . . .” (Cal. Code Regs., tit. 16, former § 1707.1.) Under new regulations of the State Board of Pharmacy, a pharmacist must provide oral consultation about the prescription to “[the] patient or the patient’s agent” whenever a prescription drug is initially dispensed. (Cal. Code Regs., tit. 16, § 1707.2, subd. (b); see Murphy v. E. R. Squibb & Sons, Inc. (1985) 40 Cal.3d 672, 678 [221 Cal.Rptr. 447, 710 P.2d 247] [refusing to hold pharmacists liable under the strict product liability doctrine in part because “the pharmacist is engaged in a hybrid enterprise, combining the performance of services and the sale of prescription drugs”].)

Inevitably, when the patient is an infant, the pharmacist’s duty to provide appropriate directions for use of the prescribed medication will be met through communication with someone other than the infant patient. In most such cases, including this one, that agent of the patient is one of the infant’s parents. Thus, it is clear that when the patient is an infant, the pharmacist must, in the performance of his or her professional duty, provide the parent with directions to be followed in administering the medication to the infant.

In this context, a recent decision from this court dealing with a medical professional’s duty in providing care to an infant and a parent, Burgess v. Superior Court, supra, 2 Cal.4th 1064, is instructive. There, this court held that an obstetrician owed a duty not only to the fetus the obstetrician delivered but also to the mother. This holding was based on the “physical and emotional realities” of the situation. (2 Cal.4th at p. 1076.)

Similarly, here too the “physical and emotional realities” of the situation must be considered. When a child is seriously injured by a pharmacy’s negligence, the parent is likely to suffer emotional distress regardless of whether the parent administered the medication. But there is an additional quantum of suffering and guilt when a parent administers the medication that severely injures the child—the parent has personally participated in poisoning the child, and must suffer the emotional consequences of that participation. It is this additional injury that renders the parent a direct victim.

As the Court of Appeal noted, it would take no stretch of the imagination to conclude that a parent who “administers a lethal dose of medication to a *138child would suffer extreme guilt and emotional distress upon becoming aware contemporaneously or after the fact that he or she was the purveyor of injury or death.” The Court of Appeal went on to ask: “If grief and emotional distress are foreseeable where one witnesses the infliction of injury or death to his or her child as in Dillon v. Legg [1968] 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316], could we say those feelings would be any less foreseeable or real when the plaintiff is the actual unwitting agent of destruction? Of course not.” In other words, as the plaintiffs’ brief puts it, the parents felt “anxiety and worry and anger because of their injury of their son. They know they poisoned their son.”

Significantly, the majority does not deny that “a parent’s realization of unwitting participation in the child’s injury would by itself be a source of significant emotional distress from guilt. . . .” (Maj. opn., ante, at p. 133.) In the majority’s view, however, there are two policy considerations that justify its denial of recovery. The first is that imposition of liability would “increase medical malpractice insurance costs . . . .” (Maj. opn., ante, at p. 133.) This assertion is unpersuasive.

It is unlikely that there would be a dramatic increase in the cost of pharmaceutical malpractice insurance if this court were to recognize liability to parents in what is, realistically, a narrow class of cases in which parents cannot also recover as “bystanders” because they did not witness the child’s actual suffering at the time they administered the medication. (See Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668 [257 Cal.Rptr. 865, 111 P.2d 814].) As the Court of Appeal noted, the conditions under which there may exist “direct victim” liability by pharmacists to parents are “self-limiting.”

To bolster its argument of increased medical malpractice costs, the majority expands the issue in this case to include “practically all providers of medical goods and services obtained by parents solely for the treatment of their children, or by other caregivers solely for the treatment of dependent family members.” (Maj. opn., ante, at p. 133.) But here the issue does not concern a wide spectrum of medical care providers; it concerns only pharmacists, who are under a professional and statutory obligation to provide accurate directions for the use of prescription medications. We are not called upon to decide the liability of “practically all providers of medical goods and services.” Nor does this case involve “other caregivers”; it involves only parents. Any holding in this case can and should be limited to the factual scenario in which a pharmacist negligently provides incorrect instructions on medication for an infant to be administered by the infant’s parent, and the parent administers the medication to the infant, thereby causing serious injury to the infant.

*139The second policy consideration that, according to the majority, justifies its denial of recovery is that a contrary holding would “ ‘inject undesirable self-protective reservations’ impairing the provision of optimal care to the patient.” (Maj. opn., ante, at p. 133.)

It is difficult to imagine just what “undesirable self-protective reservations” a pharmacist under a duty to provide accurate instructions for the use of medicines might have that would impair patient care as a result of allowing parents to recover in the circumstances of this case. Allowing parents to recover against pharmacists as direct victims when they have personally administered medication causing serious injury to their children would rationally tend to assure that the pharmacist’s legal duty to consult with the patient or the patient’s agent is more, not less, effectively fulfilled. In the case on which the majority relies, Goodman v. Kennedy (1976) 18 Cal.3d 335 [134 Cal.Rptr. 375, 556 P.2d 737], this court held that an attorney’s liability for negligence did not extend to third parties who were represented by their own counsel and with whom the defendant attorney’s client dealt at arm’s length in a commercial transaction. The third parties in Goodman stood in a much different relationship to the provider of professional services than the parents in this case who, following a pharmacist’s faulty professional directions, administered a dangerous overdose of medication to their own infant.

I would affirm the judgment of the Court of Appeal.

Mosk, J., concurred.