Way back in law school we learned that a plaintiff suing for negligence must satisfy four elements: (1) duty, (2) breach, (3) causation, and (4) injury. Every one of these elements can be a battleground. Even what seems like the simplest inquiry – whether the plaintiff was injured – can be controversial. We have seen cases where a plaintiff alleged increased chance, and consequent fear, of injury. Is that enough? Psychological injuries present a host of difficulties. Remember the “zone of injury” cases? Some injury issues manage to be at once both straightforward and intractable. One of the all-time great movies about litigation, The Fortune Cookie, centered around that great bugaboo of small-time litigation – soft tissue injury. Not everyone who dons a neck-brace is really hurt.
The element of breach can also be knotty. Was the defendant insufficiently careful? How much care is reasonable? What is the standard of reasonableness? Reasonable person? Reasonable riveter? Reasonable podiatrist? When we sat on a jury in a med-mal case a couple of months ago, pretty much the only issue in play was whether the doctor had paid close enough attention to his patient’s hemoglobin levels. Some jurors wanted to throw up their hands, exasperated at the impossibility of knowing what a doctor should do. Theoretically, the breach element drops out in strict liability cases. Fault should not matter. But when the claim is strict liability failure to warn, negligence principles creep back into the case. It can be hard for a defendant to win summary judgment on breach. Courts are quick to throw that issue to the jury. And then, like the jury we sat on, some poor fact-finders will want to throw the issue right back.
More often, it is the causation element that constitutes summary judgment bait. In this blog, we have spilled a lot of web-ink on the causation issue, whether it be medical causation (did this drug or device hurt the plaintiff?) or warning causation (would a different warning in the label have steered the doctor away from this product?). If the doctor did not even read the label, our clients win. Some commentators say that there are five, not four, elements, because causation actually involves separate questions of but-for causation and proximate causation. That latter item has given rise to quasi-philosophical musings. Maybe something played a role in the causal chain, but is it so remote or obscure that putting the defendant on the hook for damages would be unfair? Maybe Donny was a dolt to leave a lit candle on the dresser in his rental apartment, but should he be on the hook if a burglar broke in, knocked the candle onto the rug, and set the place ablaze? Proximate causation, in the views of some, can boil down to whether it was reasonably foreseeable that the breach of the duty of care would cause this particular harm. But evaluating foreseeability can almost seem like an epistemological exercise. Whose perspective counts? What are the sources of foreseeability? We’ve always thought that foreseeability was fuzzy criterion, because it can be altered by so many things – including court opinions. Now that we know how clumsy burglars can be, thanks to F. Supp. or Law360 or the Philly Inquirer or Eyewitness News, shouldn’t we be extra-careful about leaving lit candles behind? (Similarly, in Fourth Amendment jurisprudence, the notion of reasonable expectation of privacy seems mercurial. Don’t SCOTUS pronouncements themselves shape such expectations? Once we read how cops can identify marijuana grow-rooms via thermal imaging, doesn’t our expectation of privacy somehow diminish? But we digress.)
If proximate cause turns, at least in part, on foreseeability, so does the first negligence element, duty. Today’s case, Martinez v. Walgreen Co., 2018 WL 3241228 (S.D. Texas July 3, 2018), is about the scope of duty. Maybe the Martinez case will end up being one for the law books. Even though the defendant in Martinez is not a drug or device company, we feel duty-bound to report on it. The defendant was a pharmacy, and the claim was the pharmacy dispensed the wrong prescription to its customer. The medication incorrectly given to the customer allegedly caused the customer to experience hypoglycemia, which adversely affected his ability to drive (blurry vision, dizziness, etc.), which resulted in a series of auto wrecks that killed the occupants of other vehicles. Those other drivers/passengers happened to be in the wrong place at the wrong time. The estates of those victims sued the pharmacy for dispensing the wrong drug. Even assuming that the pharmacy was negligent and that such negligence caused the terrible injuries, and assuming that the pharmacy owed a duty to its own customer to get the prescription right, did the pharmacy owe a duty of care to the people in the cars struck by its customer?
The federal court, applying Texas law, said No, and granted summary judgment to the pharmacy. In Texas, pharmacists are considered health-care providers and owe their customers a duty of care. That much is clear. But Texas courts have not recognized a general common-law duty for health-care providers towards third parties for injuries that may be the result of the provider’s negligence to the patient. So far, so bad for the plaintiff. Nevertheless, Texas has recognized a duty for medical professionals towards third parties in very limited circumstances when the breach of a duty to the patient gives rise to a reasonably foreseeable harm to an identifiable person or class of persons as a consequence of that breach. For example, if a medical facility housing a criminally insane patient – one who presented a clear danger to the public – failed to control that patient and permitted him to shoot someone, the facility could be liable for breach of the facility’s duty to control the patient. Is that a good analogy to what happened in Martinez? Perhaps the best case that plaintiffs cited was one in which a Texas court held that a doctor who failed to warn a patient who had a known history of drug abuse not to drive while under the influence of Quaaludes and the patient then drove and injured third party motorists. Pretty close, right?
But Texas courts over the years have considerably reined in the duty to third parties. Thus, physicians have no duty to warn epileptic patients not to drive and mental health professionals have no duty to warn third parties about specific threats (the law might be different elsewhere). Texas courts have also ruled that pharmacists have no duty to warn about the potential side-effects of medication. Against this not entirely consistent or clear legal backdrop, the Martinez court asked the following question: “Under Texas law does a pharmacist owe a duty to unconnected third parties for the negligent prescription of medication?” The court answered that question in the negative because “In order for a third-party duty to arise, the breach of the health-care provider’s duty to the patient must create a reasonably foreseeable consequence to an identifiable party or class. Here, Plaintiffs are not identifiable third parties.” The defendant pharmacy had no duty to control its customer’s behavior or to warn him about side effects. To find a duty to the plaintiffs, the court would have to find that “a pharmacist has a general duty to the public for negligent provision of medication. The Texas Supreme Court has never held that such a duty exists, and thus, this Court, Erie-bound cannot so find now.” Well, that sort of respect for Erie is eerily refreshing, isn’t it?
The plaintiffs still did not give up. They argued that the pharmacy’s dispensation of the wrong medicine violated a statute and that, therefore, this was a case of negligence per se. The negligence per se doctrine simply means that a defendant’s violation of a statute removes the need for a jury to assess whether the defendant was careless. The statute itself sets the bar for due care. But what that means is that negligence per se answers the breach question – “negligence per se does not impose a duty.” It is the absence of duty in the Martinez case that puts the plaintiff out of court. It is the absence of duty in the Martinez case that puts that case in our blog.