E:zF Katz - The Pennsylvania General Assembly

5152 LEGISLATIVE JOURNALHOUSE June 8,
act is not liahle in any law suit for his actions. That is step further. Suppose a doctor, as it says on page 9,
another thing that, as an attorney representing con- checks the box that says, "Substitution Permissible."?
sumers, hothers me. I am curious as to why that is put Mr. SIIANE. But you will note that on page 10 he says
in there. For the sake of the consumer, Mr. Speaker? the critical words, as I read the words on that page, "at
I have no further questions.
the consumer's direction." I guess if I was a sharp negligence
lawyer, the matter of the mandatory suhstitution
The SPEAKER pro tempore. The Chair recognizes the
that Mr. Ryan raised wo~~ld be a situation that might not
gentlernan from Indiana, Mr. Shane.
he considered "at the consumer's direction." Therefore,
Mr. SHANE. Just a brief point in rebuttal: If the
you would pierce the immunity that the statute purports
doctor is really serious and has a good reason for not to give. What is your judgment on that, sir?
wanting a generic drug substituted for a brand-name
Mr. McCLATCHY. What you are saying then is, iI
drug that he prescribes, all he has to do is initial the
something goes wrong with that drug that is substituted.
appropriate column and that takes care of it.
if it has an adverse reaction on the patient or the con-
So I say, let us vote for this hill which is going to do
sumer, and he, because of his asking for the substitution,
a lot for o~ur consumers, particularly the senior citizens
would not be able to hold anyone liable. Is that correct?
whose drug costs are the highest and their income is the
Mr. SHANE. But if there is some kind of automatic
lowest.
suhstitution, it appears to me that this waiver or this
The SPEAKER pro tempore. The Chair recognizes the insularity in section 7 is not airtight, and a sharp neglilady
from Chester, Mrs. Crawford.
gence lawyer would pierce that with no trouble. But,
Mrs. CRAWFORD. Mr. Speaker, I will yield to the again, you are getting a top-of-the-head reaction from
gentleman from Montgomery, Mr. McClatchy.
me because I am not a member of the committee and I
do not know how or what the discussion was surro~~nding
The SPEAKER pro tempore. The Chair recognizes the these amendments.
gentleman from Montgomery, Mr. McClatchy.
Mr. McCLATCHY. There was some discussion, hut I
Mr. McCLATCIIY. Thank you, Mr. Speaker. do not think we got into a very legalized argument about
Would Mr. Shanc consent to interrogation, please? the real answer. No one ever really came up with the
The SPEAKER pro tempore. Will the gentleman from answer,
Indiana, Mr. Shane, consent to interrogation?
Mr. SHANE. They tell me that a good lawyer on
Mr. SHANE. Yes, Mr. Speaker.
cross-examination knows the answer to every question
The SPEAKER pro tempore. The gentleman may pro-
ceed.
Mr. McCLATCHY. Mr. Speaker, I am concerned about
the liability for the malpractice problem under this legis-
lation.
Just follow me a little bit here. I see here-
Mr. SHANE. Will the gentleman yield for a second?
Mr. McCLATCHY. Yes.
Mr. SHANE. First of all, I am not a member of the
Health and Welfare Committee. I am vitally interestcd
in this bill just from a personal interest and from an
interest of people whom I see spending a lot of money on
prescription drugs. I was not privy to the writing on the
amending of this bill. I would prefer for the moment
to yield to somebody on this subject who is more
knowledgeable than I.
Mr. McCLATCHY. Mr. Speaker, you are a lawyer.
You have spoken for the hill. I think that your insight
might be a little hit better than some of ours in the
Health and Welfare Committee. It is not an interroga-
that he asks, ~ ~ you do. ~ ~ ~
Mr. McCLATCHY. I do not know the answer and that
is why I asked the question.
Mr. SI-IANE. Are you still a member of the Health
and Welfare Committee?
Mr. McCLATCHY.
Committee.
I am on the Health and Welfare
I Mr. SHANE. Did vou miss a meeting?
Mr. McCLATCHY. -No, I was there. iposed the question
hut nobody answered it.
Mr. SHANE. Why do you not share this abundant
knowledge that you apparently have on the subject for
the enlightenment of your colleagues?
Mr. McCLATCHY. That is what I am trying to do.
And as I understand-
Mr. SHANE. Well, why use me as a Charlie McCarthy?
Why do you not just tell us?
The SPEAKER pro tempore. Will the gentleman
please suspend? I suggest that the comments are not
germane to the issue and that we should get back on
t"l"k . - -. -.
tion that is trying to he disruptive. I sincerely am trying .
to get your opinion as a lawyer about the malpractice
I
Mr. McCLATCHY. Mr. Speaker, all I am askin? is,
problem that might be created by this legislation.
If you who would be in the case ii there is a drug substi.
follow me carefully, maybe you could answer it. tution and the doctor checks the box, "Substitution Per-
Now on page 10, section 7, we have already agreed that missible"? That is my only question. I do not know thc
no pharmacist, if he operates under this bill, can be held answer, and if Mr. Shane cannot answer it, maybe hlr.
liable. Is that correct?
Stahl can answer it.
Mr. SHANE. Yes. It says: "No pharmacist complying
with the provisions of this act shall be liable in any way
for the dispensing of an equivalent drug at the consumer's
direction."
~ r SHANE. . The hypothetical question is the doctor's
initialed "~~h~titution permissible" and the pharmacist
substituted, and the consumer got ill and was damaged in
some way and he is suing for negligence. Is that what
I would suspect that the words "at the consumer's you are suggesting?
direction" would merely then make this sentence a restatement
of tort law.
Mr. MCCLATCHY. That is exactly right. Wllo would
he sue for negligence?
Mr. McCLATCHY. Well, I would like to go back one The SPEAKER pro tempore. Does the gentleman wish