Opinion
33744, 33745.
DECIDED FEBRUARY 28, 1952.
Action for damages; from Fulton Superior Court — Judge Andrews. June 22, 1951.
Dorsey Dorsey, Scott Hogg, for plaintiff.
T. J. Long, for defendant.
1. The petition set forth a cause of action, and the court did not err in denying the defendant's motion to dismiss.
2. The court did not err in granting the nonsuit.
DECIDED FEBRUARY 28, 1952.
James S. Webb sued Sandoz Chemical Works Inc. In Fulton Superior Court for damages for expenses and loss of services resulting from an injury to his wife from taking a patent medicine manufactured by the defendant, causing her to be partially blinded and ill from taking such medicine, and resulting in permanent partial blindness. The petition as amended alleged substantially the following: The plaintiff is the lawful husband of Mary Virginia Webb. The defendant is engaged in the manufacture of patent and proprietary medicine, drugs, and pharmaceuticals, which products are advertised, distributed, and sold generally throughout the United States. One of its products is a proprietary medicine which is sold under the trade name of "Cafergone", and intended for the relief of persons suffering from migraine headaches. The dosage recommended and prescribed by the defendant was two tablets at the onset of an attack of migraine, to be followed thereafter by one tablet each hour until the headache is relieved or until the total of six tablets has been taken, and in no event should more than eight tablets be taken in one twenty-four hour period. On the morning of August 2, 1949, the plaintiff's wife was suffering with a migraine headache, and with the approval of her physician, she took Cafergone tablets in accordance with the dosage prescribed by the defendant. After a total of five tablets had been taken, she sustained a sudden intense shock, resulting in partial loss of consciousness, partial blindness, and her visual field was materially limited and affected. The attack was attended with nausea, shock, pain, and blindness, which condition persisted for several days, requiring hospitalization and medical attention for her. Her vision was permanently impaired, the impairment consisting of her inability to see anything in the major portion of the upper right quadrant of the normal visual field, and the visual field in which she enjoyed full vision prior to the attack on August 2, 1949. The impairment of the vision is permanent and the visual field can never be widened or improved. Cafergone is a complete and finished product, and was placed on the market to be sold by retailers of drugs to consumers. The tablets taken by the plaintiff's wife were purchased on July 30, 1949, from a pharmacist in Fulton County, Georgia, retailing Cafergone and other products of the defendant. The tablets were manufactured by the defendant, and were purchased and taken by her in the same finished and completed from as when sold in the channels of trade by the defendant. Cafergone tablets contain two ingredients: (1) ergotamine tartrate, a powerful and poisonous drug, and (2) caffeine, a potent drug and stimulant. Each of said drugs and Cafergone itself are inherently dangerous for human consumption. The combination of said drugs greatly increases the efficiency and power of each, especially of ergotamine, on the human system, to the extent that the said tablets, in the dosage intended and prescribed by the defendant, are capable of producing dire effects and consequences, including the attacks and impairment of vision as herein described. The taking of the Cafergone tablets manufactured by the defendant, in accordance with directions as to dosage, was the direct and proximate cause of the permanent loss of vision in the upper right quadrant of the visual field. The defendant was negligent as follows: (a) in manufacturing and placing on the market the product Cafergone, together with the directions as to its purpose and usage and dosage, for the reason that, when so administered, Cafergone was dangerous and likely to cause bodily injury to consumers; (b) in failing to warn the consumer of the danger in its consumption, even within the dosage recommended of six tablets; (c) as a manufacturer of a potent and proprietary medicine, the defendant was negligent in directing the use of two tablets upon the onset of an attack of migraine, to be followed by one tablet until the maximum of six tablets had been taken, because such dosage was excessive and capable of producing bodily injury; (d) in failing to instruct as to the safe method of use of Cafergone; (e) in failing to exercise reasonable care to give to those whom it expected to use its product the information the defendant should have recognized as necessary to enable the users thereof to realize the danger in using it in the manner recommended; (f) in permitting consumers to use the product without disclosing that it was dangerous even when used for the purpose for which it was placed on the market; (g) in failing to exercise ordinary care as a manufacturer, knowing that its product was to be taken by consumers in the dosage recommended, and knowing further that such consumers would be ignorant of the dangers inherent in such dosage; (h) in recommending the dosage, when it knew or should have known that it was dangerous and could cause serious bodily injury.
The defendant answered and denied that its product caused the injury and also disclaimed any negligence on its part causing or contributing to the injury. The case proceeded to trial before a jury, and the evidence was substantially as follows: Sandoz is a manufacturer of drugs and pharmaceuticals including the patent medicine Cafergone, which it markets through retailers to consumers. Sandoz recommends and markets Cafergone for migraine headaches. It is a finished product. It is not processed in any way after manufacture by Sandoz. Mrs. Webb suffered from migraine headaches. She took Cafergone as a purchaser and consumer of the product. It was dispensed to her on the prescription of a physician. After taking five Cafergone tablets in about four hours, within and in accordance with the Sandoz recommended dosage, she had an attack. A permanent partial loss of vision occurred and she became ill, with resulting medical expenses and loss of services to her husband. Each Cafergone tablet is composed of one milligram of ergotamine tartrate and one hundred milligrams of caffeine. Sandoz recommended and prescribed a dosage of its product Cafergone, which was then two tablets initial dose, to be followed by a tablet an hour until the headache was relieved or until a total of six tablets was taken. Sandoz placed Cafergone on the market to be dispensed and used only when prescribed by a physician. It made no representation directly to a consumer or to a physician in any particular case. It did not recommend a dosage of six tablets, but merely suggested it to the physician. Cafergone is inherently dangerous for human consumption. The plaintiff's wife was afflicted with recurrent attacks of migraine headache, which had persisted for some years. She had been under the care of physicians throughout the country for the relief of this condition. She was a patient of a Dr. Vella in Atlanta, and had been for about a year, prior to the incident complained of in this suit, and his treatment was primarily for the relief of migraine headaches. The plaintiff's wife had been administered various medications in the treatment of her condition. Cafergone tablets were prescribed by Dr. Berry, a partner of Dr. Vella, for the plaintiff's wife, and the prescription was filled by J. L. Hawk Inc., a druggist concern, at the direction of the plaintiff's wife's physician. The defendant warned that dosages exceeding four tablets may produce unfavorable reactions. The defendant cautioned that Cafergone was "to be dispensed only by or on the prescription of a physician."
At the conclusion of the plaintiff's evidence the defendant made two motions, to wit, a general motion to dismiss the plaintiff's petition and a motion for a nonsuit. The court overruled the motion to dismiss, but granted the motion for a nonsuit. The plaintiff excepted to the granting of a nonsuit, and the defendant filed a cross-bill of exceptions, assigning error on the denial of the motion to dismiss.
1. The petition set forth a cause of action, and the court did not err in denying the defendant's motion to dismiss it. See Blood Balm Co. v. Cooper, 83 Ga. 457 ( 10 S.E. 118).
2. Recovery in the present case is sought on the theory that the defendant, without disclosing its dangerous properties, was negligent in putting on the market the poisonous medication known as "Cafergone," some of which was taken by the wife of the plaintiff with damaging results. It is not contended, or shown by the evidence, that the product was adulterated or otherwise than what it was supposed to be, a combination of ergotamine tartrate and caffeine. No similar case seems to have been before the appellate courts of this State. Blood Balm Co. v. Cooper, supra, is not in point. There the Supreme Court was dealing with a case where a patent medicine, a secret formula, containing iodine of potash in excess of accepted practice, was sold and recommended indiscriminately to the public, and not merely for use upon the advice and prescription of a physician. Here the medication in tablet form was sold to druggists in sealed bottles with accompanying caution in writing that it was "to be dispensed only by or on the prescription of a physician," and the directions also contained the precaution that it "should be taken under medical supervision." It was testified by a prescriptionist in the drug store from which the tablets used by the plaintiff's wife were purchased that he took them from such a bottle on a shelf, and put them in a "prescription box" with a proper label for the wife.
Certainly no liability attaches merely because injury followed the ingestion of the medicine under such circumstances of marketing. See Armour Co. v. Gulley, 61 Ga. App. 414 ( 6 S.E.2d, 165). The evidence showed that it was good medical practice to prescribe Cafergone within the limitations recommended by the defendant, notwithstanding the fact that sometimes bad results might follow where persons had individual sensitivity to drugs not discoverable in the exercise of ordinary care. The wife's physician testified, "She was idiosyncratic to it or she had vascular disease that I, even though I did all I could within my knowledge, overlooked in my diagnosis of the case." While one physician testified that he would not prescribe Cafergone and considered it dangerous, liability is not thereby fixed. See Mayo v. McClung, 83 Ga. App. 548, 556 (2) ( 64 S.E.2d 330). The degree of care to be exercised by a manufacturing chemist in compounding and selling a medication with a prescription, as here, is that which is prescribed by the Code, § 84-924, as to the "administering of medicine" professionally, to wit, a reasonable degree of care and skill. "This standard prescribed by the Code, `when applied to the facts and circumstances of any particular case, must be taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally.'" Bryan v. Grace, 63 Ga. App. 373 (1a) ( 11 S.E.2d 241). The evidence demanded a finding that no negligence was shown on the part of the defendant. The doctrine of res ipsa loquitur has no application under the facts presented.
The judgment denying the motion to dismiss was affirmed by this court in division 1 of the opinion on the theory that, under the allegations of the petition, the pleader meant to present a case where the medicine was recommended to the public for the relief of pain from migraine headaches without cautioning that it should be dispensed only by or on the prescription of a physician; whereas the evidence here shows that such caution had been given in writing by the defendant in disposing of its product. Consequently the case was not proved as laid, and no negligence being shown, the court properly granted a nonsuit.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.