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filed: May 7, 1986.


Appeal from the Judgment of March 14, 1985, of the Court of Common Pleas, Trial Division for the County of Philadelphia, at No. 788 December Term, 1980.


John J. O'Brien, Jr., Philadelphia, for appellant.

Edward J. Schwabenland, Philadelphia, Thomas E. Mellon, Jr., Doylestown, for appellees.

Olszewski, Tamilia and Kelly, JJ.

Author: Kelly

[ 353 Pa. Super. Page 23]

This case involves the appeal of the defendant pharmacy from a jury verdict in favor of the plaintiffs which found the defendant pharmacy jointly liable for injuries sustained by the plaintiffs as a result of the negligence of the physician and pharmacy in prescribing and dispensing a dangerous and potentially toxic prescription drug without instruction to the plaintiff regarding the uniformly accepted maximum safe dosage or warning as to the serious and life threatening side effects which result from exceeding the maximum safe dosage.

On appeal, the defendant, Morgan Pharmacy, raises fifteen separate issues in support of its contentions that the trial court erred in failing to grant the defendant's motion for judgment notwithstanding the verdict or in the alternative for new trial, and that the trial court abused its discretion in molding the verdict into a judgment. We cannot agree.

We have reviewed the voluminous record, the briefs of the parties, and the well reasoned opinion of the Honorable Michael E. Wallace. We find that the evidence was sufficient to sustain the verdict, that the trial court committed no errors of law requiring the grant of a new trial, and that the court did not abuse its discretion in molding the verdict.

[ 353 Pa. Super. Page 24]

Issues raised regarding legal causation, and joint tortfeasor status present issues of general significance to the public which compel further examination. Appellant's other arguments were adequately disposed of by the learned trial court, and we affirm on the basis of its opinion below.

The appellant contends that its acts and omissions do not constitute legal causation as the plaintiff relied solely upon the express instructions of Dr. Stack. We apply Whitner v. Von Hintz, 437 Pa. 448, 263 A.2d 889 (1970), and find that legal causation is established where a pharmacy fails to exercise due diligence in its professional capacity and but for its failure to exercise due diligence the injuries to the plaintiffs would not have occurred.

The appellant contends that the trial court erred in finding that Morgan Pharmacy and Dr. Stack were joint tortfeasors. We apply Lasprogata v. Qualls, 263 Pa. Super. 174, 397 A.2d 803 (1979) and Voyles v. Corwin, 295 Pa. Super. 126, 441 A.2d 381 (1982), and find that the defendants were in fact joint tortfeasors.

The appellant further contends that the indemity concepts of primary and secondary liability should be applied in the instant case. We distinguish Builders Supply v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951), and other cases cited by the appellant and find that public policy precludes any application of the concept of primary and secondary liability to the facts of the instant case. The defendants were in fact joint tortfeasors.

The facts necessary to our decision and supported by the evidence were summarized by the learned trial court as follows:

On January 24, 1979, plaintiff Patricia Riff awoke with a migraine headache. Mrs. Riff went to her mother's home and the family physician, defendant William T. Stack, M.D., was summoned. Dr. Stack visited Mrs. Riff and provided a prescription for a package of 12 Cafergot suppositories, with written instructions thereon to insert one in the rectum "every four hours for headache". The

[ 353 Pa. Super. Page 25]

    prescription did not contain any notation to authorize a refill.

In early April of 1979 Mrs. Riff suffered a second severe migraine headache. She inserted the Cafergot suppositories remaining from her first attack over the course of the next two days until her supply of the drug ran low and her husband took the empty package back to Morgan Pharmacy, which refilled the prescription. This migraine headache lasted 3 1/2 to 4 days, during which time plaintiff used 15 to 17 supporitories by inserting one every four hours as instructed.

On August 27, 1979 Mrs. Riff suffered a third migraine headache. She discovered that she only had a few Cafergot suppositories remaining and once again Morgan Pharmacy refilled the prescription and provided her husband with an additional 12 suppositories. This headache lasted two days and Mrs. Riff used five or six suppositories. On August 31, 1979 Mrs. Riff began experiencing discomfort in her right foot. The next day she became concerned and walked to nearby Northeast Hospital where she was examined in the emergency room. Following a transfer in Pennsylvania Hospital for the performance of two arteriograms to determine whether she suffered from a blood clot it was determined that there were no clots but that her condition was the result of the toxic effects of an overdose of Cafergot. Mrs. Riff was initially advised by doctors that she was likely to die. That opinion was later revised and Mrs. Riff was advised that

[ 353 Pa. Super. Page 26]

    it was likely that her leg would have to be amputated. As time passed her condition improved to a degree that amputation was deemed unnecessary, but her foot suffered permanent damage resulting from diminished blood circulation and nerve damage due to the Cafergot overdose. As a result her foot tends to drag and is in a constant state of discomfort. Testimony was ...

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