Washington State Physicians Insurance Exchange & Association v. Fisons Corp.

122 Wash.2d 299, 858 P.2d 1054 (1993)

Quick Summary

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Dr. James Klicpera (defendant, cross-plaintiff) prescribed Somophyllin Oral Liquid, manufactured by Fisons Corporation (defendant), to Jennifer Pollock (plaintiff), who then suffered serious health consequences. The ensuing legal battle questioned whether Dr. Klicpera could seek damages from Fisons for personal and professional harm due to inadequate drug warnings.

Ultimately, the Washington Supreme Court held that while Dr. Klicpera had standing under the Consumer Protection Act for professional reputation damages, he could not claim personal pain and suffering damages under this act or product liability laws.

Facts of the Case

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Jennifer Pollock (plaintiff), a young child, experienced severe seizures and brain damage after taking Somophyllin Oral Liquid, an asthma medication prescribed by Dr. James Klicpera (defendant, cross-plaintiff), and manufactured by Fisons Corporation (defendant). The adverse reaction was due to an interaction between the medication’s active ingredient, theophylline, and a viral infection. Pollock’s parents initiated a lawsuit against both Dr. Klicpera and Fisons Corporation on behalf of their daughter.

Dr. Klicpera and his insurer, Washington State Physicians Insurance Exchange & Association (insurer) (cross-plaintiff), subsequently filed a cross-claim against Fisons Corporation. During the discovery phase, the insurer requested ‘Dear Doctor’ letters from Fisons that warned about the drug’s interactions with viral infections. Although Fisons produced some documents, they withheld two critical letters sent to physicians in 1987 that contained important warnings.

These letters were later provided to the insurers by an anonymous source, leading to allegations of discovery violations by Fisons. The jury found in favor of the insurer and Pollock, but the insurer’s motion for sanctions against Fisons for discovery rule violations was denied by the trial court and upheld on appeal.

Procedural Posture and History

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  1. The Pollocks filed a lawsuit against Dr. Klicpera and Fisons Corporation.
  2. Dr. Klicpera and his insurer filed a cross-claim against Fisons Corporation.
  3. The trial court denied the insurer’s motion for sanctions against Fisons Corporation for discovery abuses.
  4. The appellate court affirmed the trial court’s decision.
  5. The insurer appealed to the Washington Supreme Court.

I.R.A.C. Format


Issue Icon

Whether a physician has a cause of action against a drug company for personal and professional injuries resulting from the drug company’s failure to adequately warn about the risks associated with a drug prescribed by the physician.

Rule of Law

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Under the Consumer Protection Act (CPA), a physician whose reputation is injured has standing to sue a drug company engaged in unfair or deceptive trade practices. However, damages for personal injuries are not recoverable under the CPA, which only provides for injuries to business or property.

Reasoning and Analysis

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The court recognized that a physician can be considered similar to an ordinary consumer in the context of prescribing medication, making them eligible to act as a ‘private attorney general’ under the CPA. The court found that Dr. Klicpera had standing to bring forth his claim, and that sufficient evidence supported the jury’s finding of causation between Fisons’ failure to warn and the physician’s injuries.

However, it was determined that damages for mental pain and suffering are not compensable under the CPA, as such damages do not constitute injury to ‘business or property.’ The court declined to extend product liability law to allow recovery for emotional distress suffered by a physician due to a patient’s injury, as such an extension would significantly depart from established Washington law regarding emotional distress damages.


Conclusion Icon

The Washington Supreme Court ruled that while Dr. Klicpera could maintain an action under the Consumer Protection Act for damages related to his professional reputation, he could not recover damages for personal pain and suffering under either the Consumer Protection Act or the product liability act.

Key Takeaways

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  1. A physician can sue a drug company under the Consumer Protection Act for failure to warn if it affects their professional reputation.
  2. Damages for mental pain and suffering are not recoverable under the Consumer Protection Act or product liability laws in Washington State when they result from a patient’s injury.
  3. The court was cautious about extending liability for emotional distress beyond established boundaries within Washington law.

Relevant FAQs of this case

What constitutes an adequate warning under Consumer Protection statutes?

An adequate warning under Consumer Protection statutes must be clear, concise, and prominent enough to inform consumers—including professionals like physicians—of the potential risks or adverse effects associated with the use of a product.

  • For example: A pharmaceutical company must include a comprehensive list of possible side effects of a medication in the packaging, and distribute ‘Dear Doctor’ letters when new risks are identified.

How can a professional prove injury to reputation in a lawsuit?

A professional can prove injury to reputation by showing evidence of direct or inferred harm to their business reputation, such as loss of patients or clients, negative publicity, or professional sanctions resulting from the defendant’s actions.

  • For example: A surgeon whose instrument sterilization machine was faulty and caused infections might demonstrate injury to reputation with a decline in patient numbers after public disclosure of the issue.

Are emotional distress damages recoverable under Consumer Protection Acts or Product Liability laws?

Emotional distress damages are not recoverable under Consumer Protection Acts or Product Liability laws unless there is a statutory provision that explicitly allows for such recovery. The emphasis is usually on tangible injuries to business or property.

  • For example: If a homeowner purchases a security system that fails due to manufacturing defects during a burglary, emotional distress from the event is generally not compensable under CPA; however, property loss as a result of the failure would be.


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