The Wrong Pill

MANILA, Philippines — We have all joked about the handwriting of doctors. Most of us hand our prescription over to the drugstore counter, pay for whatever is handed back to us, and not bother to take a second look at the box as we trust the person behind the counter to read the prescription correctly and give the correct medicine to us.

What happens when this trust fails us? Who then is liable when a drugstore dispenses the wrong medicine and, as a result, the customer suffers injury?

The Supreme Court answered this question in the case of Mercury Drug Corporation v. Sebastian M. Baking (GR 156037, May 28, 2007).

In the case, Mr. Baking went to his doctor for a check-up and he was prescribed medicine for high blood sugar and triglyceride levels, namely, Diamicron and Benalize. He brought the prescription to the Mercury Drug Alabang branch but the saleslady misread the prescription for Diamicron and sold him Dormicum, which was a potent sleeping tablet.

Sebastian took the wrong medicine and he fell asleep while driving his car resulting in a collision with another vehicle. He later learned from his doctor that he had been given the wrong medicine by the drugstore. Because of this, Mr. Baking sued Mercury Drug for damages.

The Court decided in favor of Mr. Baking and ordered Mercury Drug to pay him actual, moral and exemplary damages.

The case was decided based on the application of Articles 2176 and 2180 of the Civil Code of the Philippines.

Article 2176 provides that whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

To sustain a claim for damages based on Article 2176, the following are the requisites:

(a) damage suffered by the plaintiff;(b) fault or negligence of the defendant; and(c) connection of cause and effect between the fault or negligence of the defendant and the damage incurred by the plaintiff.

Because the wrong medicine was given by an employee of Mercury Drug, the Court applied Article 2180 which provides that the obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. In this case, the drugstore was responsible for damages caused by its employee who was performing her duty. 

Given the circumstances, one may ask then, how Mercury Drug could have avoided liability.

Diligence

It could have avoided liability in this case by proving that it observed the proper diligence in the selection and supervision of its employee. The standard of diligence is that of a good father of a family.

Establishing the proper diligence is essential because once the negligence of the employee is shown, the law presumes that the employer was itself negligent in the selection and supervision of the employee. The burden is now on the employer to prove that it observed the proper diligence before the incident which it can do by proving it implemented strict hiring standards, conducted proper training by presenting training records, and that written procedures were in place to ensure that pharmacists and sales people of the drugstore verify each prescription before the medicine leaves the counter.

In the Mercury Drug case, the company was not able to prove it exercised the diligence of a good father of a family in the selection and supervision of its employee.

Business with Public Interest

It is notable that the Court declared that the drugstore business is imbued with public interest such that its employees must exercise the highest degree of care otherwise, the health and safety of people will be put in danger.

The mistake of the drugstore employee in dispensing Dormicum, instead of the prescribed Diamicron, could turn into a mistake which is a matter of life and death for the buying patient. Accordingly, the employee should have been very cautious in dispensing medicines by verifying whether the medicine she gave was the one prescribed by the patient’s physician. In such cases, the care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands.

Contributory Negligence

Mercury Drug submitted as its defense that Mr. Baking was the one who caused his injury because he was negligent in driving his car.

This defense is based on Article 2179 of the Civil Code which provides that one cannot recover damages when one’s own negligence was the immediate and proximate cause of one’s injury. Moreover, if the negligence was only contributory, damages may still be awarded but reduced.

The Court did not give weight to the defense of Mercury Drug. It declared that the vehicular accident could not have occurred had the employee been careful in reading the doctor’s prescription. Without the potent effects of Dormicum, a sleeping tablet, it was unlikely that Mr. Baking would fall asleep while driving his car, resulting in a collision.

The Mercury Drug case, at lease the decision of the Court made available to the public, does not indicate that the Court considered the possible negligence of Mr. Baking when he did not check the prescription and the packaging of the medicine before taking it nor was there any discussion on whether the quality of the handwriting of the doctor in the prescription played a part in the mistake.

Ultimately, the Mercury Drug Corporation v. Baking case serves as a stark reminder of the heightened responsibility placed on pharmaceutical providers. While clear prescriptions from doctors and vigilance from patients are essential safeguards, the law firmly places the final burden of accuracy on the drugstore, imposing upon it the requirement of the exercise of extraordinary diligence as a non-negotiable legal duty. INQ

(The author, Atty. John Philip C. Siao, is a practicing lawyer and founding Partner of Tiongco Siao Bello & Associates Law Offices, an Arbitrator of the Construction Industry Arbitration Commission of the Philippines, and teaches law at the De La Salle University Tañada-Diokno School of Law. He may be contacted at [email protected]. The views expressed in this article belong to the author alone.)