U.S. Pharmacist

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In Pari Delicto

Jesse C. Vivian, BS Pharm, JD
Professor, Department of Pharmacy Practice,
College of Pharmacy and Allied Health
Professions, Wayne State University,
Detroit, Michigan

1/23/2007

US Pharm. 2007;1:88-91.

Although Latin phrases are not currently in vogue within the context of proper English communication (written or spoken), court opinions continue using archaic terms as if they were part of the lexicon of the day. There is a growing body of literature telling us that communication errors are at the center of avoidable patient harm.1 Most "younger pharmacists" pick up on the idioms we use to fill prescriptions either in a pharmacy terminology class in school or through on-the-job learning sessions. A small segment of "older pharmacists" 2 took classes in Latin while in high school or as undergraduates in college. At one time or another, students who expressed interest in health care were instructed to take at least two years, or preferably, four years of formal classroom training in the language, based on the premise that many medical ideas have roots in this language that is no longer spoken. Irrespective of how or where you learned it, Latin phrases still make it onto prescriptions that pharmacists are supposed to translate into the 's English," or something similar, that patients will hopefully understand. For many of us, abbreviations such as qid, tid, qd, and os are shortcuts that we use like a second language with our colleagues.

There are many legal terms that also rely heavily on Latin words that have been used for centuries to describe "common law" concepts and doctrines.3 This is no error or an oddity of history. Practitioners of any vocation in any sector of the universe have communication shortcuts, abbreviations, and foreign phrases or languages that are known only to those inside the occupation. In fact, there is a notion that professionals intentionally use words or phrases that are unknown to the general populace as a mechanism of keeping lay people from getting to know too much about any given profession. Remember this the next time you have maintenance on your automobile when the workman explains that your PCV valve is not working and you need a complete flush of the powertrain hoses that serpentine around the rotary parts of your calipers. And you, a college graduate who is trained in scientific principles, have absolutely no clue what any of this nonsense means except that it is going to cost you more money than the oil change you needed.

For similar reasons, there are some legal vocabulary concepts that pharmacists should be aware of. In pari delicto is one of the legal doctrines that can have a significant impact on your ability to practice your chosen profession.4 The translation is fairly simple. It means equally wrong and is used to describe the situation when one party to a lawsuit is as much at fault as the opposing party.5 In a vernacular easier to comprehend, it means that one cannot go to court and seek redress of a claimed wrong deed when the accuser has "dirty hands." The phrase is a common-law defense indicating that a plaintiff's recovery may be barred by his own wrongful conduct. In most situations, the defendant to a lawsuit will allege that the plaintiff has done something so bad that the court should not hear the complaints of the plaintiff.

Two prevailing philosophies are used to justify application of the doctrine. The first is that courts should not lend their good offices to mediating disputes among wrongdoers. The second is that denying judicial relief to an admitted wrongdoer is an effective means of deterring illegality. In its classic formulation, the in pari delicto defense was narrowly limited to situations where the plaintiff truly bore, at least substantially, equal responsibility for his injury, because "in cases where both parties are in delicto, i.e., concurring in an illegal act, it does not always mean that the parties stand in pari delicto; there may be, and often are, very different degrees in their guilt."6 Even such, going back as far as 1985, the federal Supreme Court explained the uses and limitations of the doctrine.7 Nevertheless, it should be considered as a defense strategy at appropriate times.

While it is easy to define the term and make it understandable to the nonlawyers among us, the rub will come when one asks how dirty the plaintiff's hands must be for a court to forbid the plaintiff from stating his or her claim. That brings up the case reviewed this month.

Facts
In a nutshell, back in May 2004, a group of consumers and organizations from Minnesota purchased prescription drugs in the United States from the defendant drug companies. They filed federal antitrust claims and also filed for restraint of trade under state statutes.8 The essence of the complaint was that the defendants unlawfully conspired to suppress the importation of Canadian prescription drugs for personal use, alleging that the defendants had "engaged in a concerted course of conduct designed to prevent brand name prescription drugs purchased from Canadian pharmacies from entering the United States." 9 As a result of this alleged unlawful conspiracy, the claim was that the defendants eliminated a legal source of prescription drugs and caused American consumers to pay higher drug prices and engaged in anticompetitive conduct, including (1) requiring Canadian pharmacies to certify that they were not selling prescription drugs to persons whom the pharmacies knew or should have known were taking the drugs outside the country; (2) monitoring orders of Canadian pharmacies and limiting their purchases to historical levels; (3) creating "blacklists" of pharmacies that were suspected of selling drugs to American consumers and directing wholesalers not to sell to the blacklisted pharmacies; and (4) cutting off supplies to wholesalers who did not comply with their policies. The defendants asked the trial court judge to dismiss the complaint for failure to state a claim.10

Proceedings
As is common in these types of cases, the matter was sent to a magistrate for recommendations as to the trial court judge's options under the applicable law. The magistrate recommended granting the motion to dismiss the federal antitrust claims. The report concluded that because the importation of Canadian prescription drugs was prohibited by the federal Food, Drug, and Cosmetic Act (FDCA), the plaintiffs could not demonstrate that they have an injury "of the kind the federal antitrust laws were designed to prevent." The trial court judge accepted the Magistrate's recommendations and dismissed the federal antitrust and state claims.

Court of Appeals
Unhappy with this result, the plaintiffs took their claim to the federal Court of Appeals.11 The appellate court noted that the trial court judge concluded that the plaintiffs lacked standing to pursue their federal antitrust claims because the allegedly anticompetitive behavior discouraged only unlawful importation of drugs and not lawful activity that the antitrust laws are designed to protect. In particular, the trial court found that drugs imported from Canada, even when imported for personal use, were nevertheless still "misbranded" under the laws of the U.S., because their labels did not bear the required "Rx only" symbol.12

The Court of Appeals also took notice that the trial court judge's decision to dismiss the federal claims was premised on its conclusion that federal law prohibits the importation of prescription drugs from Canada for personal use. The plaintiffs continued to assert that the common assumption that such importation is unlawful is based purely on "myth," and that no federal statute actually precludes a citizen from carrying prescription drugs purchased in Canada into the U.S. But that assertion must be squared with the FDA, that virtually all importation of drugs into the U.S. by individual consumers violates the FDCA, because the drugs are not approved,13 are not labeled as required,14 or are dispensed without a valid prescription.15 Adding to this state of affairs, the FDA's Office of Compliance has cautioned that "drugs from foreign countries do not have the same assurance of safety as drugs actually regulated by the FDA." Furthermore, the trial court judge's decision expressed the view that "drugs delivered to the American public from foreign countries may be very different from FDA approved drugs with respect to formulation, potency, quality, and labeling." As expected, the appellate court affirmed the ruling issued by the trial court judge.

Analysis
So what does all this have to do with the in pari delicto discussion in the beginning of the column? Here, the plaintiffs wanted to import drugs from Canada to save money. They went so far as to claim that the drug manufacturers had conspired with each other to make the ban on importation illegal. The problem was that the defendant drug manufacturers did not make or try to enforce the laws that make drug importation from other countries unlawful (even if they did fully support this application of the law). Instead, it was the government, not the manufacturers, that enforced the ban. In a juxtaposition of reasoning, this was application of the in pari delicto doctrine in reverse. The plaintiffs wanted cheaper drugs from Canada even though they would be labeled with virtual "dirty hands." Oddly, it was the government that would not let them engage in activities that would be in violation of the law.

The court concluded that there was no legally cognizable harm done to these plaintiffs by these defendants even if, as the complaint alleged, it was true that the drug companies had conspired to make the import ban illegal. It was the government enforcing its own policies, as opposed to the defendants trying to enforce a law that they are joyfully content with. Maybe the plaintiffs selected the wrong defendants. Maybe they should have also sued the FDA, claiming it conspired with the drug companies. It is interesting to speculate on the outcome had the litigation strategy been altered.

Consider application of the in pari delicto doctrine in a setting that might be more plausible. You are working in a community pharmacy. A customer presents a few prescriptions for controlled substances. You verify their legitimacy and dispense the medication. Over the course of a year or so, you file a significant number of prescriptions for that patient and for a few other people that asked your patient to pick up medication for their prescriptions. The list of dispensed medications begins to grow significantly for these patrons. One day, after another year or so, you are presented with a lawsuit from that one customer who claims that the prescriptions you filled (in good faith) were in fact forged and you should have known they were forged by the quantity of drugs you dispensed and the frequency of dispensing. The lawsuit also claims that the patient is now addicted to the very same medications you dispensed.

This would be an opportune time to defend your action on the grounds of in pari delicto. You can point out that while your conduct may not have been stellar, the patient should not be permitted to prosper at your expense, because the patient engaged in wrongdoing by either doing the forging himself or getting prescriptions from physicians on false pretenses. Believe it or not, there is precedence that this approach to defending yourself just might work.16

References
1. See www.insidejustice.com/resources/glossary.php or www.cerner.com/public/Cerner_3.asp?id=27431 as examples of communicative problems.
2. By older, I mean anyone over the age of 60. By utilizing this arbitrary number, I successfully remain in the category of "younger pharmacists."
3. As used here, "common law" refers to "judge-made" rulings as opposed to legislative statues.
4. The full phrase is " in pari delicto potior est conditio defendentis": "In a case of equal or mutual fault … the position of the [defending] party… is the better one." Bateman Eichler, Hill Richards, Inc. V. Berner, 472 U.S. 299 (1985).
5. See www.insidejustice.com/resources/glossary.php. Accessed December 20, 2006.
6. See Bateman Eichler, 472 U.S. 299, at 307, note 3, supra. See also. J. Story, Equity Jurisprudence 304-305 (13th ed. 1886) In more concrete terms, the Court stated: "Thus there might be an "inequality of condition" between the parties, id., at 305, or "a confidential relationship between them" that determined their "relative standing" before a court. In addition, the public policy considerations that undergirded the in pari delicto defense were frequently construed as precluding the defense even where the plaintiff bore substantial fault for his injury: "[T]here may be on the part of the court itself a necessity of supporting the public interests or public policy in many cases, however reprehensible the acts of the parties may be."1 Story 305. Notwithstanding these traditional limitations, many courts have given the in pari delicto defense a broad application to bar actions where plaintiffs simply have been involved generally in "the same sort of wrongdoing" as defendants. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S., at 138.
7. See Bateman Eichler, note 4 supra.
8. § 4 of the Clayton Act, 15 U.S.C. § 15, for damages caused by alleged violations of § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, and pursuant to § 16 of the Clayton Act, 15 U.S.C. § 26, seeking injunctive relief.
9. In Re: Canadian Imp. Antitrust Litigation, Slip Op No. 5-3873 (November 30, 2006), 2006 US App Lexis 29394.
10. See Fed. R. Civ. P. 12(b)(6).
11. Eighth Circuit, 2006 US App Lexis 29394, 2006-2 Trade Cas, CCH P75, 508.
12. For a discussion of the "Rx" symbol, see Vivian JC. The value of a symbol. US Pharm . 2005;10:64-65. Posted October 19, 2005 in US Pharmacist: www.uspharmacist.com/index.asp?show=article&page=8_1594.htm.
13. 21 U.S.C. § 355.
14. 21 U.S.C. § 352.
15. 21 U.S.C. § 353(b)(1).
16. Orzel v Scott Drug, 537 NW 208 (Mich), 1995.

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