SENATE BILL REPORT

ESB 5597

BYSenators Nelson, West, Newhouse, Smith, Conner, Wojahn and Niemi

Limiting pharmacists' liability.

Senate Committee on Health & Long-Term Care

Senate Hearing Date(s):February 23, 1989; February 27, 1989

Majority Report:  Do pass.

      Signed by Senators West, Chairman; Smith, Vice Chairman; Johnson, Kreidler, Niemi, Wojahn.

Senate Staff:Gregory Miller (786-7784)

                  January 19, 1990

House Committe on Judiciary

AS PASSED SENATE, JANUARY 19, 1990

BACKGROUND:

In a product liability action, the product seller may be held strictly liable for a manufacturing defect under certain circumstances, such as when the manufacturer is insolvent.

Several product liability actions were brought against drug manufacturers, physicians and dispensing pharmacists after the drug diethylstilbersterol (DES) was discovered to cause clear cell adenocarcinoma in the female children of women who took it during pregnancy.  Several courts considered whether or not the dispensing pharmacist could be held strictly liable for the alleged defects in the drug under product liability provisions or implied or express warranty provisions in the Uniform Commercial Code.  Generally, courts concluded that a dispensing pharmacist who correctly dispensed a commercially manufactured drug pursuant to a prescription was engaged in a "service" rather than "product selling" and could not be held strictly liable.

In 1986, a Washington trial court disagreed and refused to grant summary judgment in favor of a dispensing pharmacist in a DES case.  The jury awarded the plaintiff a judgment against the pharmacist.  The pharmacist did not appeal because the manufacturers satisfied the judgment.

SUMMARY:

A pharmacist dispensing a prescription product, manufactured by a commercial manufacturer, pursuant to a prescription issued by a licensed prescribing practitioner is not a "product seller" under the law of product liability.

The dispensing procedure is considered a rendition of service rather than a sale.  Therefore, a pharmacist cannot be held strictly liable under product liability law for dispensing drugs correctly.

A pharmacist may still be held liable, however, for willful misconduct or negligence in dispensing drugs.

Appropriation:    none

Revenue:    none

Fiscal Note:      none requested

Effective Date:The bill contains an emergency clause and takes effect immediately.

Senate Committee - Testified: Lars Hennum, Pharmacists of Washington (pro)

HOUSE AMENDMENTS:

In order to qualify for the limited liability provided in this bill, the House amendments require pharmacists to identify the manufacturer or distributor from whom he or she obtained the product that resulted in injury.  The House amendments also add provisions to tort reform law which exclude pharmacists from being considered as having had contributed to the injury.  This means that other parties found to be liable would be responsible for the pharmacists' share of the fault in those situations where the pharmacist is immune.