HOUSE BILL REPORT

ESB 5597

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

Limiting pharmacists' liability.

House Committe on Judiciary

Majority Report:  Do pass as amended.  (16)

      Signed by Representatives Appelwick, Chair; Crane, Vice Chair; Padden, Ranking Republican Member; Brough, Dellwo, Forner, Hargrove, Inslee, P. King, R. Meyers, H. Myers, Schmidt, Scott, D. Sommers, Tate and Wineberry.

House Staff:Pat Shelledy (786-7149)

AS REPORTED BY COMMITTEE ON JUDICIARY FEBRUARY 22, 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.

A product manufacturer is subject to liability to a claimant if the claimant's harm was proximately caused by the negligence of the manufacturer.  A product manufacturer is subject to strict liability to a claimant if the claimant's harm was proximately caused by a product that was unsafely constructed or does not conform to manufacturer's express or implied warranties.  The statute governing manufacturer's liability does not contain express provisions regarding liability of manufacturers of single source drugs.

SUMMARY:

BILL AS AMENDED:  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 professional 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.

Manufacturers of a single source drug product are individually liable for product liability claims.  Manufacturers of a multiple source drug will share liability proportionate to their market share.  The manufacturer or distributor must demonstrate that their drug company did not manufacturer the product to avoid liability.

AMENDED BILL COMPARED TO ENGROSSED BILL:  The provisions governing manufacturer's liability are added.  A technical amendment is added to describe the service of dispensing drugs a "professional service."

Fiscal Note:      Not Requested.

House Committee ‑ Testified For:    No one.

House Committee - Testified Against:      No one.

House Committee - Testimony For:    None.

House Committee - Testimony Against:      None.