Washington State Physicians Insurance Exchange & Association v. Fisons Corp.
122 Wash. 2d 299, 858 P.2d 1054 (1993)
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Rule of Law:
A physician has standing under the Washington Consumer Protection Act (CPA) to sue a drug manufacturer for damages to their professional reputation when the manufacturer's deceptive failure to warn about a drug's risks causes the physician to prescribe a drug that harms a patient. However, a physician cannot recover damages for their own emotional pain and suffering under the Product Liability Act (PLA) for a patient's injuries.
Facts:
- Fisons Corporation manufactured a theophylline-based medication, Somophyllin Oral Liquid.
- As early as June 1981, Fisons was aware of "life-threatening theophylline toxicity" in children with viral infections but sent a warning letter to only a small number of physicians.
- A July 1985 internal Fisons memorandum acknowledged an "epidemic of theophylline toxicity" and referred to the current recommended dosage as a significant "mistake," yet the company continued to promote and sell the drug.
- Dr. James Klicpera, a pediatrician, prescribed Somophyllin to his 2-year-old patient, Jennifer Pollock.
- On January 18, 1986, Jennifer Pollock suffered seizures caused by an excessive amount of theophylline in her system, resulting in severe and permanent brain damage.
- Dr. Klicpera was unaware of the specific risks Fisons had concealed regarding the drug's heightened toxicity in children with viral infections.
- Following the incident and the subsequent malpractice suit, Dr. Klicpera's professional reputation was damaged by media reports.
Procedural Posture:
- The Pollock family sued Dr. James Klicpera for malpractice and Fisons Corporation for product liability in a state trial court.
- Dr. Klicpera filed a cross-claim against Fisons for contribution, damages under the Consumer Protection Act, and emotional distress.
- Dr. Klicpera settled with the Pollocks, with his insurer (WSPIE) loaning the family $500,000.
- After the discovery of documents showing Fisons' prior knowledge of the drug's dangers, Fisons settled with the Pollocks for $6.9 million.
- The trial court dismissed the Pollocks' claims and Dr. Klicpera's contribution claims against Fisons, allowing his direct claims to proceed.
- A jury in the trial court found for Dr. Klicpera on his CPA and product liability claims, awarding damages for loss of professional reputation and for pain and suffering, while finding him 3.3% contributorily negligent.
- The trial court denied Fisons' motion for judgment notwithstanding the verdict (JNOV) but reduced a small portion of the damages.
- Fisons (appellant) sought direct review from the Washington Supreme Court, the state's highest court, with Dr. Klicpera (appellee) cross-appealing on the issue of discovery sanctions.
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Issue:
Under the Washington Consumer Protection Act, does a physician have a cause of action against a drug manufacturer for injury to the physician's professional reputation caused by the manufacturer's failure to warn of a drug's risks, leading to patient harm?
Opinions:
Majority - Andersen, C.J.
Yes, under the Washington Consumer Protection Act (CPA), a physician has a cause of action against a drug manufacturer for injury to professional reputation. The court held that the CPA's protection for "any person who is injured in his or her business or property" does not require the plaintiff to be a direct consumer. Under the "learned intermediary doctrine," drug companies market directly to physicians, making the physician akin to a consumer who uses the drug as a tool of their trade. Therefore, Dr. Klicpera had standing to sue for damages to his professional reputation, a recognized injury to "business or property" under the CPA. However, the court also held that damages for personal pain and suffering are not recoverable under the CPA, nor does the Product Liability Act (PLA) permit a physician to recover for emotional distress resulting from a patient's injury, as this type of "harm" is too attenuated and was not contemplated by the legislature.
Concurring-in-part-and-dissenting-in-part - Brachtenbach, J.
Yes, the physician has a cause of action under the CPA, but the majority erred in denying recovery for pain and suffering under the Product Liability Act (PLA). The dissent argued that the PLA defines a "claimant" broadly as "any person or entity that suffers harm," and "harm" as "any damages recognized by the courts of this state." Since Washington courts recognize damages for emotional pain and suffering, Dr. Klicpera's claim should have been allowed. The dissent criticized the majority for creating its own theory not argued by the defendant and asserted that the prescribing doctor, who is the target of the manufacturer's warnings, effectively "stands in the shoes of the ordinary consumer."
Analysis:
This decision establishes an important precedent by granting physicians standing to sue drug manufacturers under consumer protection laws for reputational harm. It recognizes the unique role of the physician as a "learned intermediary" who is the direct target of pharmaceutical marketing and relies on the manufacturer's information. By allowing recovery for business-related damages but not for the physician's personal emotional distress, the court draws a clear line between economic and non-economic injuries in this third-party context. The ruling reinforces the strength of the CPA as a tool for professionals harmed by deceptive trade practices while limiting the scope of emotional distress claims under the PLA to prevent potentially "endless" liability.
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