Babies Drowning In Puddles, CVS Pharmacists And Duties Of Care

CVS Pharmacy.jpgHaving studied philosophy as an undergraduate, I remember arriving at law school and quickly being disabused of the idea that my law school experience would be something akin to “The Paper Chase,” with imperious law professors kicking about mind-wracking hypotheticals. I think I learned this sometime in the first week of my first-year torts class, where we studying intentional torts and I deployed a thought experiment concocted by the philosopher John Searle: a man resolves to kill his enemy and gets into his car to drive to his enemy’s house, where he believes his enemy to be. En route to his enemy’s house, he accidentally runs over his enemy, who was out for a jog and who had darted in front of the car. Was the killing intentional? I remember asking the professor if a claim for an intentional tort like battery could lie on those facts, since Searle’s hypothetical appeared to fulfill all of the elements of battery, and was quickly reminded we were not there for a philosophy seminar: we were there to learn legal principles and learn how to use them to predict the outcomes of realistic cases.
About the only time legal education delved in the world of completely fanciful hypotheticals was in the hoary tale of the baby drowning in a puddle. The baby drowning in a puddle hypothetical runs like this: A man comes upon an infant, unknown to him, drowning in a shallow puddle. No one else is around and the baby will drown if the man does not act. The man can save the baby without any danger to himself, but does not act. The man walks away and the baby drowns. What tort has the man committed? None. As noted by one law professor in a recent law review article, “…there is a virtually universal consensus throughout the common law world that no duty is owed the baby in these circumstances.” In the absence of some legally cognizable relationship between them, people have no duty to act to help strangers.
The baby-drowning-in-a-puddle case is sort of an unusual legal principle because it’s not based upon any cases. There is no case of Smith v. Jones, where a baby drowned in such a puddle. It’s really straight out of the realm of the imagination.
And it’s not unfamiliar to philosophers. In his famous essay, “Famine, Affluence and Morality,” the Princeton ethicist Peter Singer argued that if you believe that it is morally wrong for a man to allow an infant drown in a puddle, you must believe it is morally wrong not to act to help those in the Third World. Other philosophers, like Peter Unger, have added their own embellishments to this thought experiment/hypothetical.
A few years ago, Singer published a book entitled: “The Life You Save: Acting Now To End World Poverty” that collected some real-life examples of babies drowning in puddles: police officers in Manchester, England who watched a ten-year old drown in a pond, instead of attempting to save him (because “they had not been trained to deal with such situations”) and many other scenarios where people walked past a virtual “baby in the puddle.”
All of this is offered as sort of a run-up to a story this week about a CVS pharmacist who refused to sell a $21 asthma inhaler to a woman in the midst of a life-threatening asthma attack who only had $20. You can read about the story here. According to the reports, while this woman flailed on the ground, the CVS pharmacist refused to give or sell her the inhaler because she was short by a little over a dollar.
It’s a fairly remarkable story and, unfortunately, the news reports leave unanswered a lot of questions, including: 1.) Were there other people around? Why didn’t they do anything to help? 2.) Was this CVS her pharmacy? 3.) What, if any, physical injuries did she suffer?
As much as the tort reformers and others say that we have too many lawsuits and people can sue for practically anything in America, this poor asthma-stricken woman, even if she had died, might have as few legal remedies as a baby in a puddle. So, I’ll toss it out there to the legal minds of the blogosphere: What viable claims might this woman have? (Let’s assume, to make it more interesting, that she died as a result). What other facts would you like to know? For anyone who wants to do the statutory research – are there any state statutes analogous to EMTALA that might have required a pharmacy to dispense emergency care to her?