All courts have held that a druggist is required to use a high standard of care in dispensing drugs on prescriptions of physicians, and that when he negligently supplies a drug other than the drug requested, he is liable for resulting harm to the purchaser. Edelstein v. Cooke, 108 Ohio St. 346, 140 N.E. 765 (1923); Knoefel v. Atkins, 40 Ind. App. 428, 81 N.E. 600 (1907); Tombari v. Connors, 85 Conn. 231, 82 A. 640 (1912); Troppi v. Scarf, 31 Mich. App. 240, 187 N.W.2d 511 (1971); Hoar v. Rasmusen, 229 Wis. 509, 282 N.W. 652 (1938); Fuhs v. Barber, 140 Kan. 373, 36 P.2d 962 (1934). We agree with the authorities holding that a druggist or pharmacist is held to a high standard or degree of care in filling drug prescriptions. It is inescapable that appellant did not use the required degree of care by substituting the female hormone drug for the blood circulation drug called for in appellee's prescription.
But not one of them supports the contention as applied to the facts of this case. The case of Tombari v. Connors, 85 Conn. 231, 82 A. 640, much relied on by appellee, was dealing with the failure of the druggist to fill the prescription correctly, and this is true of most of the cases which have to do with the liability of druggists for negligence. Here no witness testifies that the dose prescribed was necessarily deadly.
The standard of care is unvarying β that of the ordinarily prudent person under the circumstances surrounding him β but, as suggested by the court, the degree of care varies with the circumstances. Brown v. New Haven Taxicab Co., 93 Conn. 251, 105 A. 706; Tombari v. Connors, 85 Conn. 231, 235, 82 A. 64; Tetreault v. Connecticut Co., 81 Conn. 556, 560, 71 A. 786. The next four assignments relate to certain portions of the charge upon agency and ratification.
In two of the cases, the druggist or his employee improperly filled the prescriptions by giving customers the wrong drugs. Burke v. Bean, 363 S.W.2d 366 (Tex.Civ.App. 1962); Tombari v. Conners, 85 Conn. 231, 82 A. 640 (1912). Each of these actions constituted a breach of the duties listed in McLeod and clearly gave rise to a cause of action.
" (Italics ours.) In support of this statement many cases are cited. (See also Tombari v. Connors, 85 Conn. 231, 234-6; McGahey v. Albritton, 214 Ala. 279, 107 So. 751; Brown v. Marshall, 47 Mich. 576, 583 (opinion by Cooley, J.); Martin v. Manning, 207 Ala. 360, 92 So. 659, 660; Faulkner v. Birch, 120 Ill. App. 281, 284-5.) Cahill's Ill. Rev. St. ch. 91, ΒΆ 65, provides, inter alia:
With the foregoing principle of law in mind, we observe that the evidence disclosed that John Haberstock requested crude oil, a liquid that was not volatile or 2. highly explosive under ordinary conditions and that appellant, through its employees, gave him benzol, a liquid that was highly "inflammable, combustible and explosive," a chemical inherently dangerous to human life, and, further, that Haberstock handed to appellant's employee a container with some crude oil therein, dirty and greasy in its exterior appearance, and the same was returned to him with three gallons of benzol placed therein instead of crude oil as ordered, without label or mark thereon to warn him, or any other person, of the contents thereof. The jury was warranted in finding, as it did find, that appellant was guilty of negligence. Davis v. Guarnieri, supra; Edelstein v. Cook (1923), 108 Ohio St. 346, 140 N.E. 765, 31 A.L.R. 1333; Moses v. Matthews (1914), 95 Neb. 672, 146 N.W. 920, Ann. Cas. 1915A 698; Tombari v. Connors (1912), 85 Conn. 231, 82 A. 640, 39 L.R.A. (N.S.) 274; Smith v. Hays (1887), 23 Ill. App. 244. Many states by specific enactments of their legislatures have declared that it is the duty of vendors of highly explosive materials to designate by label, mark or otherwise the dangerousness of the articles sold.
The Prozac medication itself had the name Prozac on it. The case relied on by the plaintiff, Tombari v. Conners, 85 Conn. 231 (1912), focuses on the duty of the pharmacist, because of his special training and knowledge, to exercise due care in the filling of prescriptions. In Tombari the prescription was in the form of a powder and the pharmacist misread an ingredient.