According to the legal definition suggested by George D. Pozgar (29), “a tort is a civil wrong, other than a breach of contract, committed against a person or property (real or personal) for which a court provides a remedy in the form of an action for damages.”¯ In other words, some action or failure to act or a series of actions is regarded as a tort when one party has some responsibility (a civil duty) towards another party and either does not fulfill this responsibility or does it in an improper way. A tort (or a delict) is differentiated from a crime, as the latter is associated with a breach of a duty to the entire society and is usually prosecuted by the state, while an accusation of tort can be passed by any offended party, “any party who has been injured may bring a lawsuit for tort”¯ (Van Gerven 19). Tortious damages first of all include physical injuries, but these can be also emotional or moral, economic and reputational injuries. Violation of privacy, real or individual property and constitutional rights also refer. By legal concept, the tort law is intended to find the causes and the guilty (the tort-feasors) for wrongdoing; to keep a balance of justice between the parties mentioned (civil or criminal liability as a substitute for vengeance); then, to keep the wrong-feasor from further torts by demanding compensation (usually monetary) and finally to stimulate the adherence to law. According to the United States Law, there are three general categories of torts in common law: the first category is associated with intentional torts (injuries caused on purpose or at least consciously), the second category is negligence (usually associated with careless fulfillment of a duty), and strict liability torts make up the third category.
Robert Courtney Case is known for drug injury. Robert Courtney was a pharmacist who abused his position of a pharmacist by acquiring drugs at grey market and selling them by prescriptions to the patients; then, by diluting oncologist prescriptions (chemotherapy drugs such as Taxol and Gemzar) for his own profit. It is rather hard to consider this case as a negligence, as it is obviously an intentional tort, while “intentional torts involve situations in which the defendant desires or knows to a substantial certainty that his act will cause the plaintiff damage”¯ (Pozgar 133). There can be hardly any doubt that Courtney understood what he was doing and realized the affect of his actions. Courtney was a professional who graduated from the School of Pharmacy at the University of Missouri- Kansas City and had enough practice after that. As any intentional tort, the case of Courtney includes intent, the act itself, the result and causation. It is cleat that the intent was to save on materials by receiving money for drugs which in reality were not corresponding to the standards. The act was voluntary diluting and distribution of the diluted drugs. As a result the patients were not treated in a proper way and suffered from the development of their diseases up to fatal outcome. As the consequences of the tortious conduct were foreseeable, there is no need to distinguish between actual and proximate causes. Hereby, Courtney has failed to exercise reasonable care (prudent care or ordinary care, in other words).
All in all, due to Courtney’s fraud 4,200 patients are reported to suffer from 1990 to 2001, with 98,000 prescriptions of 72 different drugs diluted, with total assets making up $18.7 million. Apart from the patients, both the doctors who prescribed the medicine and the pharmaceutical companies producing those drugs, as in the eyes of consumers they failed to fulfill their professional obligations too because the drugs they acquired did not help them to recover. In 2001 Robert Courtney was eventually arrested and found guilty to 20 federal counts concerning tampering and adulterating the chemotherapy drugs Taxol and Gemzar. What is more, there were about 300 other suits for fraud and wrongful death naming Courtney. As a result, the defendant was sentenced to 30 years of imprisonment. However, as O’Donnell insists, the penalties for ongoing malpractice cases are not enough, as it was not simply malpractice, but a full-value criminal act. The matter is, the Federal Drug Agency “has no regulatory authority over compounding pharmacists ”“ unless they behave like manufactures and make large quantities of drugs”¯ (O’Donnell 657).
Further on, there could be a question of the Doctrine of Respondeat Superior (from Latin “let the master answer”¯), which states that very often an employer is responsible for the actions of the employees, when the tort was committed within the time and space of the job and within the job description of official duties. However, vicarious liability cannot be applied when the tort-feasor acted as an independent contractor for his own benefit. Moreover, in the case under consideration Robert Courtney was an employer for himself, while he was the owner and operator of the Research Medical Tower Pharmacy in Kansas City, Missouri.
O’Donnell, James T. “Pharmacist Malpractice and the Infamous Courtney Case.”¯ Drug injury: liability, analysis, and prevention. Ed. James O’Donnell. Tucson, Arizona: Lawyers & Judges Publishing Company, 2005. 657-669. Print.
Pozgar, George D. Long-term care and the law: a legal guide for health care professionals. Sudbury, MA: Jones & Bartlett Learning, 1992.
Van Gerven, W. et al. (eds) (2001). Cases, Materials and Text on National, Supranational and International Tort Law. Oxford: Hart Publishing.