
    Pericas, Plaintiff and Appellant, v. Porto Rico Drug Company, Defendant and Appellee.
    Appeal from the District Court of Ponce in an Action for Damages.
    No. 2583.
    Decided November 10, 1922.
    Damages — Physician's Prescription — Substitution—Evidence.—This is an action foii damages against a druggist for the reason that the physician prescribed injections of Mulford’s. combined staphyloeoeeie serobaeterine to be administered to a patient and the druggist supplied Mulford’s simple staph-ylocoeeic serobaeteriue which was administered, to the patient by injection, and it was alleged that the substitution without the physician’s permission prevented the use of the injection that would have benefited the patient and was the cause of his death. Held: That the evidence having shown that by reason of the advanced stage of the mierobie infection the injection prescribed would not have produced favorable results, the court did not err in holding that the substitution was.not the cause of the death.
    The facts are stated in the opinion.
    
      Mr. G. Bnmet for the appellant.
    
      Mr. J. Tons Soto for,the appellee.
   Me. Justice Audrey

delivered the opinion of the court.

Luis Pericás, a boy of about twelve years of age, arrived at home sick in the afternoon of a Thursday in the month of November of 1920. At noon on the following day a physician examined him and found that he complained of acute earache and had fever and symptoms of catarrh in the nose and throat. His diagnosis was otfitis, or inflammation of the middle ear, -and he prescribed a sedative fur the ear, an internal potion and injections of Mulford’s combined staph-ylococcic serobacterine as a prophylactic. A nurse administered the first injection, at two o’clock that afternoon. < The physician was informed that the patient was worse and visited him again at five o’clock in the afternoon. He then found that the patient had meningitis and ordered his immediate removal to a hospital, which was done. At that time he could not make a lumbar puncture, apparently because he had not the necessary needles, but made it on the following day (Saturday) and ordered that the patient be given a second injection of the prescribed prophylactic. It was then discovered that on the day before the drug-store had not filled the prescription accurately, but had substituted the injection mixture by Mulford’s simple staphylococcic serobacterine and this was what had been administered to the boy • on the day before. Thereupon the physician ordered that the remedy prescribed be procured and the. drug-store then furnished the combined remedy. An injection of this was administered to the boy, but be died at one o’clock p. m. Later an analysis was made of the cerebro-spinal fluid extracted through the lumbar, puncture made that morning.

The father of the child brought an action against the Porto Bico Drug Company, whose drug-store in Ponce had furnished the substituted injection, and claimed a certain sum of money as damages for the death of his son, alleging that by reason- of the defendant’s act the patient was- not given the injections prescribed, thus permitting the disease to develop rapidly and preventing the administration to the patient of the medicines necessary to combat the disease. After a trial judgment was - rendered dismissing the complaint on the ground that the substituted medicine did not endanger the life or health of the patient and did him no harm whatsoever, inasmuch as owing to the acuteness of the disease the microbio infection was so advanced that the-administration of the medicine prescribed would not have had any favorable effect, as was the case with the substituted medicine.

An appeal having been taken from that judgment, the plaintiff alleges in his brief in support of his appeal that the conclusions of the lower court are erroneous because the theory of his Complaint is that although the substituted medicine produced no effect, it prevented the administration to the patient of the medicine which would have been beneficial to him, and put his life in danger.

The appellant having admitted that the substituted medicine had no effect on the boy, the question now is- whether the trial court erred in finding that owing to the advanced stage of the disease the injection prescribed would not have produced favorable results if it had been adtninistered. ' On this very important point two physicians, one called by each party, testified at the trial.

The basis of the theory of the appellant is that as the combined injections prescribed contain golden staphylococci, white staphylococci, streptococci, bacilli-coli and pneumococci, while the last three kinds of bacteria are not present in the simple injection supplied by the drug-store, and as the post 'mortem analysis of the cerebro-spinal flnid showed that the meninges were greatly infected by microbio pneumococci which caused the death, the lack of pneumococci in the injection supplied by the drug-store rendered it impossible to arrest the said infection, inasmuch as the combined staphy-lococcic serobacterine is prescribed as a preventive against diseases produced by any of the bacteria that it contains.

Those injections are to be administered every twenty-four hours and are labeled A, B, C and D. Each of the last three contains twice as much of the bacteria as the preceding one and their immunizing effects do not begin until twenty-four or forty-eight hours after they have been administered, although it can not be unquestionable that immunity is certain, and three or four injections are necessary to neutralize the live organisms.

The physician who attended the boy in his illness and who was called as an expert by the plaintiff, testified, among other things, that the amount of pneumococci contained in injection A of the combined staphylococcic serobacterine which he prescribed would not have been sufficient to neutralize the live organisms present in the meninges; that if the bóy had been given the combined instead of the simple injection he would not have been saved, nor even if he had been given a second injection, owing to the virulence of the case, the intensity of the symptoms and their rapid development until his death; that if the combined injection had been administered before the cerebral infection, it might have, had some effect; that according to the information given to him at the house when he visited the patient the second time in the afternoon, when the injection was administered the patient had the symptoms of meningitis, and that the case could be treated only by means of tbe lumbar puncture and tbe injections. On tbe other band,, tbe medical expert called by tbe defendant testified, among other things, that tbe disease which tbe boy bad was suppurated otitis superinducing meningitis; that injection A of tbe combined staphylococcic serobacterine administered a little after tbe physician called for tbe first time and a second one given twenty-four hours later could have produced no results considering tbe infection of tbe patient; that there was no- other solution than to open tbe source of tbe infection; that if tbe injection bad been administered before meningitis supervened, it might have bad some preventive action, but according to tbe symptoms tbe infection of tbe meninges developed before tbe first injection was administered; that meningitis of tbe kind that tbe boy Pericas bad can not be treated by means of bacteria, but it is necessary immediately to make tbe lumbar puncture and operate in order to discover tbe source of tbe infection, and that tbe use of serums means a loss of time and tbe death of tbe patient.

Tbe testimony of these experts leads us to tbe conclusiqn that tbe failure to administer the combined injection to tbe patient when it was prescribed, because of tbe fact that the drug-store supplied tbe simple injection, was not tbe cause of tbe patient’s death, considering tbe advanced stage of tbe disease; therefore, tbe court below did not err in finding that owing to tbe intensity of tbe microbio infection tbe administration of the medicine prescribed would not have produced any favorable effect.

Tbe judgment appealed from must be

Affirmed.

Chief Justice Del Toro and Justice Hutchison concurred.

Justices Wolf and Franco Soto took no part in tbe decision of this case. '  