Frye v. Medicare-Glaser Corp.

605 N.E.2d 557, 153 Ill. 2d 26, 178 Ill. Dec. 763, 1992 Ill. LEXIS 156
CourtIllinois Supreme Court
DecidedOctober 22, 1992
Docket72908
StatusPublished
Cited by160 cases

This text of 605 N.E.2d 557 (Frye v. Medicare-Glaser Corp.) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frye v. Medicare-Glaser Corp., 605 N.E.2d 557, 153 Ill. 2d 26, 178 Ill. Dec. 763, 1992 Ill. LEXIS 156 (Ill. 1992).

Opinions

JUSTICE CLARK

delivered the opinion of the court:

On August 26, 1988, Gorina Frye, as special administrator of the estate of Stephen Frye, deceased, filed a two-count complaint against defendants Dr. John Barrow, M.D., Medicare-Glaser Corporation (Medicare-Glaser) and Evelyn Nightengale. In count I, plaintiff alleged that Dr. Barrow failed to warn plaintiff’s decedent of the dangerous effects of taking the drug Fiorinal while drinking alcohol. In count II, plaintiff sued Medicare-Glaser, the pharmacy that filled the prescription, and Evelyn Nightengale, the registered pharmacist and employee of Medicare-Glaser, on a theory of negligent undertaking. Specifically, plaintiff alleged that although Medicare-Glaser and Evelyn Nightengale had no initial duty to warn of the dangerous side effects of the drug Fiorinal, they undertook to warn and did so negligently. The circuit court granted Medicare-Glaser and Evelyn Nightengale’s motion for summary judgment as to count II.

The appellate court reversed, holding that the circuit court erred in granting summary judgment in favor of Medicare-Glaser and Evelyn Nightengale. (219 Ill. App. 3d 931.) We granted Medicare-Glaser and Evelyn Nightengale’s petition for leave to appeal (134 Ill. 2d R. 315). Only count II of plaintiff’s complaint is before this court for review. Amicus curiae briefs were filed by the Illinois Trial Lawyers Association (“A Pharmacist should be under a duty to properly warn under special circumstances such as when she voluntarily assumes the duty to warn”), the Illinois Pharmacists Association (“Impose upon the pharmacy profession the same duty as that owed by other professionals practicing their professions”) and the National Association of Boards of Pharmacy (“A pharmacist has an affirmative duty to warn a patient of potential drug interactions and possible side effects of drugs”).

On Friday, August 28, 1986, Dr. Barrow performed arthroscopic surgery on Stephen Frye’s knee at Franklin Hospital in Benton, Illinois. Following surgery, Dr. Barrow prescribed the drug Fiorinal for Stephen Frye. Later that afternoon, after Frye had been released from the hospital, his mother had the prescription filled at the Medicare-Glaser pharmacy by Evelyn Nightengale, the pharmacist on duty. Nightengale filled the prescription with the correct drug and with the appropriate number of capsules. Further, on the prescription container, Nightengale affixed two labels: one, a label with a picture of a “drowsy eye” and the words “May Cause Drowsiness”; and, two, a federally required label stating “CAUTION: Federal law prohibits the transfer of this drug to persons other than the patient to whom it was prescribed.” The written prescription from Dr. Barrow for Fiorinal did not instruct or suggest that any warning label be placed on the prescription container.

On September 3, 1986, Stephen Frye was found dead in his trailer, and his date of death was estimated to be the evening of September 1.

Evelyn Nightengale was deposed by plaintiffs counsel on July 7, 1989, and provided the following relevant information. When a prescription is filled at Medicare-Glaser, patient information and the specific prescription is typed into a computer. The computer generates a label, identifying the prescribing physician, the patient, and the dosage as indicated by the physician’s prescription. In addition, a computer software program generates a separate document that suggests warning labels that might be placed on the container. In this case, the computer suggested three warning labels: “drowsiness *** alcohol and *** impairing the ability to drive.” Nightengale testified that the warning pertaining to the use of alcohol and Fiorinal said “something to the effect that alcohol may intensify the effect of this drug.” Nightengale also stated that the pharmacist filling a prescription has the discretion of whether to place a specific label on a container. Here, Nightengale stated that she did not place a label warning about the effects of alcohol when combined with Fiorinal because “it offended so many people that I would think that they might drink.” Nightengale testified that she had been “chewed out” in the past for placing such labels on containers.

As mentioned briefly above, two amici curiae, namely, the Illinois Pharmacists Association (Pharmacists Association) and the National Association of Boards of Pharmacy (National Association), argue that this court should place an affirmative duty on pharmacists to counsel consumers on the dangerous side effects of prescription drugs. Specifically, the Pharmacists Association and the National Association contend that the “learned intermediary doctrine,” which basically states that drug manufacturers must warn physicians of a drug’s dangerous side effects and that the prescribing physicians have a duty to convey the warnings to their patients (see Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507; Leesley v. West (1988), 165 Ill. App. 3d 135; Eldridge v. Eli Lilly & Co. (1985), 138 Ill. App. 3d 124), should not stand in the way of a pharmacist’s affirmative duty to warn consumers of a drug’s dangerous side effects. This question will not, however, ‘be considered here, as the parties have never raised the issue. (See Archer Daniels Midland Co. v. Industrial Comm’n (1990), 138 Ill. 2d 107, 117.) Plaintiff has conceded in her complaint and throughout the appeals process that pharmacists do not have an affirmative duty to counsel customers on the dangerous side effects of prescription drugs. Rather, plaintiff bases her complaint on the negligent undertaking theory of liability, and that is, therefore, the focus of this opinion.

Plaintiff argues that although Medicare-Glaser and Nightengale did not have a duty to warn Stephen Frye of the dangerous side effects of Fiorinal, they undertook to warn of the dangerous side effects, and in so doing were negligent. Specifically, plaintiff alleges that defendants failed to adequately warn of the dangerous side effects of Fiorinal and “placed a warning label showing a ‘drowsy eye’ *** when the proper warning label should have warned that anyone taking [Fiorinal] should avoid the use of alcohol, because alcohol would intensify the effect of [Fiorinal].”

This matter is before us on defendants’ motion for summary judgment. The purpose of summary judgment is not to try an issue of fact but to determine if one exists. A motion for summary judgment should be granted when the pleadings, depositions and affidavits reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) Moreover, for purposes of summary judgment, we must take the facts in the light most favorable to the non-moving party, and thus we assume that Stephen Frye died from the combined use of alcohol and Fiorinal as plaintiff alleges.

The appellate court stated that pursuant to the “learned intermediary doctrine,” Medicare-Glaser and Evelyn Nightengale were under no initial duty to warn Frye of the dangerous side effects of Fiorinal. (219 Ill. App. 3d at 934-35 (citing Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, Leesley v. West (1988), 165 Ill. App. 3d 135, and Eldridge v. Eli Lilly & Co. (1985), 138 Ill. App. 3d 124).) Moreover, the appellate court correctly noted that plaintiff has framed her claim under the voluntary undertaking theory of liability.

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Bluebook (online)
605 N.E.2d 557, 153 Ill. 2d 26, 178 Ill. Dec. 763, 1992 Ill. LEXIS 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frye-v-medicare-glaser-corp-ill-1992.