HOUSE BILL REPORT

EHB 1702

BYRepresentatives Crane, Patrick, Cooper, Wolfe, Prentice, Anderson, Padden, Zellinsky, Youngsman and Betrozoff

Limiting liability of pharmacists.

House Committe on Judiciary

Majority Report:  Do pass with amendments.  (15)

      Signed by Representatives Appelwick, Chair; Crane, Vice Chair; Padden, Ranking Republican Member; Belcher, Dellwo, Hargrove, P. King, Moyer, H. Myers, Patrick, Schmidt, Scott, D. Sommers, Tate and Wineberry.

House Staff:Pat Shelledy (786-7149)

AS PASSED HOUSE MARCH 6, 1989

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 a drug named diethylstilbersterol (DES) was discovered to cause clear cell adenocarcinoma in the female children of women who took the drug during pregnancy. Several courts decided whether the dispensing pharmacist who sold the drug could be held strictly liable for the alleged defects in the drug under products liability provisions or implied and 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.  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 cannot be held strictly liable under the product liability provision or liable under the implied warranty provisions of the uniform commercial code for correctly dispensing pursuant to a prescription a commercially manufactured drug.  A pharmacist may be held liable for willful or negligent conduct when dispensing drugs.

Fiscal Note:      Not Requested.

House Committee ‑ Testified For:    Lars Hennum, Pharmacists of Washington.

House Committee - Testified Against:      None Presented.

House Committee - Testimony For:    Pharmacists who do properly sell a commercially manufactured drug should not be held strictly liable for the sale.  The exception is narrow and does not preclude liability for negligence or willful misconduct.

House Committee - Testimony Against:      None Presented.