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Keywords

damagesdiscoveryliabilitymotioncorporationconsumer protectionproduct liabilitycommon lawseizure
damagesliabilitymotioncorporationconsumer protectionproduct liability

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Washington State Physicians Ins. Exchange & Ass’n v. Fisons Corp., 122 Wash.2d 299, 858 P.2d 1054, 62 USLW 2190, Prod.Liab.Rep. (CCH) P 13,675

Facts

Dr. Klicpera prescribed theophylline to his patient, a 2-year-old girl named Jennifer Pollock, who subsequently suffered seizures and permanent brain damage due to an excessive amount of the drug in her system. The Pollocks sued Klicpera and the drug manufacturer, Fisons Corporation. Klicpera cross-claimed against Fisons for damages related to his professional reputation and emotional distress, claiming the company failed to warn him of the drug's risks. After a lengthy discovery process, Klicpera settled with the Pollocks, and later, a jury awarded him damages against Fisons for loss of consultations, injury to reputation, and pain and suffering.

The Pollocks sued Dr. James Klicpera (Jennifer's pediatrician), who had prescribed the drug, as well as Fisons Corporation (the drug manufacturer and hereafter drug company) which produced Somophyllin Oral Liquid, the theophylline-based medication prescribed for Jennifer.

Issue

Whether a physician can recover damages for personal and professional injuries from a drug company due to the adverse effects of a drug prescribed to a patient, and whether the damages awarded were excessive.

We are asked in this case to decide whether a physician has a cause of action against a drug company for personal and professional injuries which he suffered when his patient had an adverse reaction to a drug he had prescribed.

Rule

A physician has standing to bring a claim under the Consumer Protection Act for injuries to reputation, but cannot recover for emotional pain and suffering under the Product Liability Act, which preempts common law remedies for product-related harms.

The Washington Consumer Protection Act (CPA), RCW 19.86.020, provides: Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

Analysis

The court found that Klicpera had standing under the Consumer Protection Act because his professional reputation was harmed by the drug company's failure to warn him of the drug's risks. However, it ruled that the Product Liability Act does not allow recovery for emotional pain and suffering caused by injuries to a patient, as such damages are not considered compensable under the act. The court also noted that the jury's findings regarding damages for loss of reputation were supported by evidence.

The drug company argues that Dr. Klicpera did not have standing to bring a CPA claim and relies upon Bowe v. Eaton, 17 Wash.App. 840, 846, 565 P.2d 826 (1977) for the proposition that the CPA only applies to unfair acts where there is a consumer transaction involving the sale of goods and services.

Conclusion

The court affirmed the award for loss of reputation and some damages but reversed the award for emotional pain and suffering, concluding that such damages are not recoverable under the Product Liability Act.

We conclude that a physician who prescribes a drug which injures a patient does not have a cause of action to recover from the drug company for his or her own emotional pain and suffering under the product liability act (RCW 7.72).

Who won?

Dr. Klicpera prevailed in part, as the court upheld his claims under the Consumer Protection Act, allowing him to recover damages for loss of reputation.

Dr. Klicpera prevailed in part, as the court upheld his claims under the Consumer Protection Act, allowing him to recover damages for loss of reputation.

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