Pediatric Poison


In January, P gives birth to a child five weeks prematurely. The child is blue, weak, and sickly. By February 22 the child shows little improvement and little weight gain and is even more fretful. On March 1, P's pediatrician prescribes a mild dosage of elixir of phenobarbital, one teaspoon every six hours. The prescription is delivered to pharmacist D. D fills a bottle with a solution, labels it, and puts on the label instructions to give the child one teaspoon every six hours. On March 2 the prescription is delivered to P. P gives the child one teaspoon of the medicine. Two hours later the child suffers convulsions and dies. An examination of the contents of the bottle reveals that it contained morphine acetate in a one-thirtieth of a grain solution rather than phenobarbital. P sues D for wrongful death of her child caused by D's negligence in filling the doctor's prescription. D admits all of the above facts but denies that his negligence proximately caused the child's death. At trial, P offers to prove that section 904 of Taylor's Medical Jurisprudence (a concededly standard treatise) states that for infants less than one year of age, the maximum safe dosage of morphine acetate is one-fortieth of a grain per teaspoon every six hours and that any greater concentration is likely to cause convulsions and death. D objects. What ruling and why at common law?

Suppose D's objection to P's offer of section 904 is sustained. P then calls Dr. Kildare to the witness stand. Through questioning, P adduces Dr. Kildare's education, internship, professional affiliations, and practice as an expert endocrinologist with 12 years on the staff of a major metropolitan hospital. P then examines Dr. Kildare as follows:

Q: Doctor, what in your opinion is the maximum safe dosage of morphine acetate for an infant less than one year?

A: One-fortieth of a grain per teaspoon every six hours.

Q: That is all. Thank you, Dr. Kildare.

The cross-examination is as follows:

Q: Doctor, have you ever prescribed morphine acetate?

A: No.

Q: Have you ever observed a patient under the influence of morphine acetate?

A: No.

Q: Doctor, have you ever taken morphine acetate yourself?

A: No.

Q: Your opinion, then, is simply a guess, isn't it?

A: No. It is based on section 904 of Taylor's Treatise on Medical Jurisprudence.

D moves to strike Dr. Kildare's entire testimony, including the direct examination. P responds, citing Finnegan v. Fall River Gas Works Co., 159 Mass. 311, 312-313, 34 N.E. 523 (1893) (Holmes, J.):

Although it might not be admissible merely to repeat what a witness had read in a book not itself admissible, still, when one who is competent on the general subject accepts from his reading as probably true a matter of detail which he has not verified, the fact gains an authority which it would not have had from the printed page alone, and, subject perhaps to the exercise of some discretion, may be admitted.

Do you agree with Holmes? What should be the limits, if any, to the license given experts to base their opinions on inadmissible hearsay?

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