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Compare and Contrast Law Essay

Sanchez v. Gruma Corporation (Case No. 19-cv-00744) is an important reminder that

unconscionability has substantive and procedural aspects. A contract is considered

unconscionable if one of the parties is not given a real opportunity to negotiate the parameters of

the agreement yet the other party is given unreasonable advantages. The procedural element

relies on two factors: oppression and surprise. Inadequate negotiating power leads to a lack of

genuine options and, ultimately, to oppression. The essence of surprise arises when the allegedly

agreed-upon conditions of the deal are buried in the fine print of a lengthy written form created

by the party trying to enforce the disputed provisions (Miller, 177). Substantive

unconscionability, on the other hand, refers to an excessively severe distribution of risks or costs

that is not reasonable given the circumstances (Shin, 83). A contract or agreement is deemed

unenforceable only if it is unconscionable on both procedural and substantive levels. However,

the threshold of procedural unconscionability needed to invalidate a contract or agreement

decreases as the level of substantive unconscionability rises.

Anyone with access to the Internet and a valid e-mail address has probably received

several offers to sell prescription drugs like Viagra. Before, patients seeking a prescription for

any reason would visit a doctor and get a medical examination to determine if the medicine in

question was appropriate. Many drugs require a prescription, but people can get them online
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without stepping foot in a doctor's office. Some doctors who provide online transactions may be

doing it out of the goodness of their hearts for their patients. The convenience of not having to

leave the house, wait in line, or arrange an appointment to enquire about a condition is a

significant perk of such dealings. However, courts should monitor which medications physicians

(dealers) can prescribe online. Common cold or flu can be treated well even without physically

examining the patient if only the symptoms are known. However, a thorough physical

examination and diagnostic testing are necessary before making drug recommendations for more

severe illnesses. This implies that courts should regulate the drugs which can be sold online.

Courts should restrict the acquisition of harmful medications using deceptive web information.

Patients’ conditions could worsen if treated by dealers who are not trained to handle their illness.

A contract is considered unconscionable if its provisions “shock the conscience" and are

one-sided, unfair, or oppressive (Miller, 177). Doctors have extensive education and training in

conducting physical examinations, making diagnoses, and weighing treatment options. However,

there are no reliable means for a doctor to assess a patient's health or knowledge of potential side

effects when providing medication over the Internet. One problem with online consultations is

that doctors may not know whether or not a patient is telling the truth about important factors

like age and weight. Also, doctors who prescribe drugs online cannot track their patients'

progress. Irrespective of the benefits of online prescription, if the trend remains unregulated,

problems may arise. Unqualified fraudsters may pose as physicians to defraud victims of their

money, yet the harmful therapy they prescribe could have serious consequences. The results of

such acts – such as deaths and worsening patient conditions should be a concern to the court.

Only a few courts have weighed in on this topic, and none have ruled that internet

medication prescribing is unethical. In a case before the Kansas Supreme Court (243, 62 P.3d
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653), the state attorney general argued that it was immoral for out-of-state doctors to enter into

agreements with Kansas citizens to administer medications via the Internet. In this instance, three

Kansas residents, including a child, signed an online contract to get a prescription for weight-loss

medicines. As there was no proof that the doctor had misled, oppressed, or exploited his greater

bargaining power, the court ruled that his behavior and the ensuing contracts were not

unconscionable. The clients obtained their prescriptions as requested. Generally, considerations

should be given by the court when deciding the validity of electronic agreements between

doctors and patients. Physicians have greater responsibility to provide thorough guidance to

patients suffering from a more severe ailment. In cases where physicians fail to reveal relevant

information about a patient's health yet continue to prescribe medication and bill the patient, they

act unethically – such actions should be deemed unconscionable.

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Works Cited

Miller, Paul S. "A Right for Retirement: Unconscionable Contracts, The Right (Not) to

Associate, and Citizens United." Am. UL Rev. 71 (2021): 177.

Sanchez v. GRUMA CORPORATION, No. 19-cv-02015-WHO (N.D. Cal. June 28, 2019).

Shin, Seungnam. "Review of US Courts' Procedural and Substantive Unconscionability Doctrine

Regarding Mandatory Arbitration Agreement in the Nursing Home Contracts." J. Arb.

Stud. 31 (2021): 83.

State ex rel. Stovall v. DVM Enterprises, Inc., 275 Kan. 243, 62 P.3d 653 (2003)