Mercury Drug strikes three

I don’t know what’s with my favorite drug store, Mercury Drug Corporation, owner of the country’s largest drug store chain.
For three times it has been penalized by the courts for endangering peoples’ lives when its employees negligently gave the wrong drug to its customers.

Most recent incident

Very recently Mercury Drug Corporation was fined by the court of appeals P100,000 when its employee in its Sucat branch gave a customer an anti-convulsion drug “Dilantin”, instead of “Benadryl”, an anti-alergy medicine.
The customer Alma Garcia said she purchased six Benadryl capsules from the concerned branch for her daughter Amanda Hazel, who later complained of abdominal discomfort, irregular bowel movement, and inability to sleep.
Amanda was later diagnosed as suffering from toxicity due to Dilantin intake, and was forced to quit school.
This is not the first time that Mercury Drug Corporation was found negligent by the courts for issuing a wrong drug to its customers.

First incident

The first time almost claimed the life of its customer.
On November 25, 1993 Sebastian Baking was prescribed by his doctor the drug called “Diamicron” (for his blood sugar).
When Baking went to Mercury drug to buy the medicine, he was given instead “Dormicum”, a potent sleeping tablet.
On the third day that Baking took the wrong medicine, he drove his car.
He fell asleep while driving.
As a result he met an accident when his car collided with another vehicle.
Baking suspected that his medicine may have had an effect in his physical state while driving.
To the shock of his doctor, it was discovered that Baking has been taking the wrong medicine.
Baking sued Mercury Drug Corp and its employee.

Second incident

Apparently unperturbed, the next victim of Mercury Drug’s negligence was no less than a judge.
Judge Raul De Leon, presiding judge of Paranaque, had red eyes in 1999. He had difficulty reading.
His doctor prescribed him “Cortisporin Opthalmic” and “Ceftin” to relieve his eyes.
The following morning, judge De Leon went to the Betterliving, Parañaque, branch of Mercury Drug Store Corporation to buy the prescribed medicines.
At his chambers, De Leon requested his sheriff to assist him in using the eye drops.
As instructed, the sheriff applied 2-3 drops on the judge's left eye. Instead of relieving his irritation, the judge felt searing pain.
He immediately rinsed the affected eye with water, but the pain did not subside.
Only then did he discover that he was given the wrong medicine, “Cortisporin Otic Solution.”
De Leon returned to the same Mercury Drug branch, with his left eye still red and teary. When he confronted the sales lady Ganzon why he was given ear drops, instead of the prescribed eye drops, she did not apologize and instead brazenly replied that she was unable to fully read the prescription.
In fact, it was her supervisor who apologized and informed De Leon that they do not have stock of the needed Cortisporin Opthalmic.
De Leon wrote Mercury Drug, through its president, Ms. Vivian K. Askuna, about the day’s incident. It did not merit any response.
Instead, two sales persons went to his office and informed him that their supervisor was busy with other matters. Having been denied his simple desire for a written apology and explanation, De Leon filed a complaint for damages against Mercury Drug.
Denying that they were negligent, Mercury Drug and Ganzon pointed out that De Leon’s own negligence was the proximate cause of his injury.
They argued that any injury would have been averted had De Leon exercised due diligence before applying the medicine on his eye.
Had he cautiously read the medicine bottle label, he would have known that he had the wrong medicine, Mercury Drug argued.

Ruling of the court

The Supreme Court ruled that Mercury Durg Corporation is liable together with its employees.

Presumption of employer’s negligence

There was a presumption that Mercury Drug Corp. did not exercise the proper diligence in the selection and supervision of its employees.
In cases where an injury is caused by the negligence of an employee, there instantly arises a presumption of law that there has been negligence on the part of the employer, either in the selection or supervision of one’s employees. This presumption may be rebutted by a clear showing that the employer has exercised the care and diligence of a good father of the family.
Mercury Drug failed to overcome such presumption.
In the Baking case, the Court ruled that obviously, Mercury Drug’s employee was grossly negligent in selling to Baking “Dormicum”, instead of the prescribed “Diamicron”.
Considering that a fatal mistake could be a matter of life and death for a buying patient, the said employee should have been very cautious in dispensing medicines, the court said
She should have verified whether the medicine she gave respondent was indeed the one prescribed by his physician, the court said.
The care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands, the court said.

Proximate cause

The proximate cause of the accident was the gross negligence of the pharmacist who gave the wrong medicine to the customer, according to the court.

Pharmacy: Imbued with public interest
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The Supreme Court ruled: “It is generally recognized that the drugstore business is imbued with public interest. This can not be more real for Mercury Drug, the country’s biggest drugstore chain”.
“This Court can not tolerate any form of negligence which can jeopardize the health and safety of its loyal patrons,” the Supreme Court said.
“Moreover, this Court will not countenance the cavalier manner it treated judge De Leon. Not only does a pharmacy owe a customer the duty of reasonable care, but it is also duty-bound to accord one with respect,” the court said.

My comments: tort or contract?

No question, the Supreme Court ruled correctly in holding Mercury Drug and its employee liable.
But I cannot agree with the court’s basis for holding Mercury drug liable.
In holding Mercury Drug liable in the Baking case, the Supreme Court invoked the law on torts.
The court cited Article 2176 of the civil code which states: “Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict…”
How the court implied the absence of a “pre-existing contractual relation” escapes me.
Does this not involve a contract of sale between Mercury Drug Corp. and the curtomer?
To my mind, the ruling should have be based on contractual breach, not quasi-delict or tort.

Impunity

What alarms me is that this is the third time that the court has to rule over the negligence of a drug store for giving the customer a wrong medicine.
The drug store apparently hasn’t learned its lesson.
Why? Because the penalty is miniscule.
The maximum award is only P100,000.00 despite the seriousness of the damage.
The Supreme Court merely awarded P50,000 moral damages and P25,000. exemplary damages.
This penalty is too small for such a serious damage.

Legislation needed.

To promote the public interest, may I kindly call on our congressmen/senators to enact a law that would criminalize the reckless giving of wrong medicines by drugs stores to its customers.
Lawmakers should look at the welfare of hapless citizens, specially senior citizens, and the not-very-literate, who may have difficulty reading ant-sized letters in medicine bottles.
The law should impose not only jail time, but in addition, a hefty penalty--- no less than P500,000, if I may suggest.
Perhaps, a local ordinance should be enacted also to immediately protect the locality.
The giving by a drug store of a wrong medicine is no less dangerous, and just as serious as a nurse administering or injecting the wrong drug to a patient.
Piligro ni