If a vender of drugs and medicines, by himself or his agent, either knowingly or negligently furnishes the wrong article or medicine and damage accrues to the purchaser, his patients, his family, or his property from the use of the drug or medicine furnished, the vender shall be liable for the injury done.
(Orig. Code 1863, § 2947; Code 1868, § 2954; Code 1873, § 3005; Code 1882, § 3005; Civil Code 1895, § 3866; Civil Code 1910, § 4462; Code 1933, § 105-1103.)
Cross references.- Pharmacists and pharmacies generally, § 26-4-1 et seq.
Law reviews.- For article, "Liability for Vaccine Injury: The United States, the European Union, and the Developing World," see 67 Emory L.J. 415 (2018). For note, "Does the National Childhood Vaccine Injury Compensation Act Really Prohibit Design Defect Claims?: Examining Federal Preemption in Light of American Home Products Corp. v. Ferrari," see 26 Ga. St. U.L. Rev. 617 (2010).
JUDICIAL DECISIONS
Codification of common-law duty.
- O.C.G.A. § 51-1-25 does nothing more than codify, with respect to vendors of drugs and medicines, the general common-law duty of all persons to exercise reasonable care and diligence to avoid injuring others. Sparks v. Kroger Co., 200 Ga. App. 135, 407 S.E.2d 105 (1991).
Druggist impliedly warrants that article druggist sells is article called for, and is liable for breach of such warranty for injury resulting in giving the purchaser the wrong article. Watkins v. Jacobs Pharmacy Co., 48 Ga. App. 38, 171 S.E. 830 (1933).
Legal doctrine caveat emptor should in cases of vendors of drugs be caveat vendor. Watkins v. Jacobs Pharmacy Co., 48 Ga. App. 38, 171 S.E. 830 (1933).
Knowledge of defect or negligence by supplier essential to action.
- With respect to the sale of specified articles intended for human consumption or use, either knowledge of the defect or negligence by the seller is an essential element. Lovett v. Emory Univ., Inc., 116 Ga. App. 277, 156 S.E.2d 923 (1967).
Professional malpractice.
- When a vendor of drugs or medicines is a licensed pharmacist and is sued on the basis of allegations that the pharmacist negligently dispensed the wrong drug in filling a medical prescription, the claim against the pharmacist clearly is for professional malpractice. Sparks v. Kroger Co., 200 Ga. App. 135, 407 S.E.2d 105 (1991).
There is nothing in O.C.G.A. § 51-1-25 which would obviate the need for compliance with O.C.G.A. § 9-11-9.1, which requires an affidavit to accompany a charge of professional malpractice. Sparks v. Kroger Co., 200 Ga. App. 135, 407 S.E.2d 105 (1991).
Cited in Lewis v. Brannen, 6 Ga. App. 419, 65 S.E. 189 (1909); Jacobs Pharmacy Co. v. Gipson, 116 Ga. App. 760, 159 S.E.2d 171 (1967).
RESEARCH REFERENCES
Am. Jur. 2d.
- 63 Am. Jur. 2d, Products Liability, § 570 et seq. 63A Am. Jur. 2d, Products Liability, §§ 1067, 1133, 1138. 63B Am. Jur. 2d, Products Liability, §§ 1919, 1920.
C.J.S.- 28 C.J.S., Drugs and Narcotics, § 40 et seq.
ALR.
- Liability of druggist for injury in consequence of mistake, 31 A.L.R. 1336; 44 A.L.R. 1482.
Liability of druggist for punitive damages, 31 A.L.R. 1362.
Civil liability of pharmacist who fills accurately an improper prescription or one calling for an unusual dose, 80 A.L.R. 452.
Liability of manufacturer or seller for injury caused by drug or medicine sold, 79 A.L.R.2d 301.
Hospital's liability for negligence in connection with preparation, storage, or dispensing of drug or medicine, 9 A.L.R.3d 579.
Malpractice: doctor's liability for mistakenly administering drug, 23 A.L.R.3d 1334.
Druggist's civil liability for suicide consummated with drugs furnished by him, 58 A.L.R.3d 828.
Liability of manufacturer or seller for injury or death allegedly caused by failure to warn regarding danger in use of vaccine or prescription drug, 94 A.L.R.3d 748.
Promotional efforts directed toward prescribing physician as affecting prescription drug manufacturer's liability for product-caused injury, 94 A.L.R.3d 1080.
Druggist's civil liability for injuries sustained as result of negligence in incorrectly filling drug prescriptions, 3 A.L.R.4th 270.
Liability of pharmacist who accurately fills prescription for harm resulting to user, 44 A.L.R.5th 393.