Kirk v. Michael Reese Hospital & Medical Center

483 N.E.2d 906, 136 Ill. App. 3d 945, 91 Ill. Dec. 420, 1985 Ill. App. LEXIS 2481

• Court: Appellate Court of Illinois
• Decided: August 28, 1985
• Docket: 81-2408
• Status: Published

Opinions

JUSTICE RIZZI

delivered the opinion of the court:

This is a personal injury action. Plaintiff, James D. Kirk, appeals from the dismissal of five counts of his third amended complaint for failure to state a cause of action. Count I involves a negligence action against defendant Michael Reese Hospital and Medical Center; count II involves a medical negligence action against defendants Irving H. Tracer, M.D., and Henry K. Fine, M.D., both of whom are psychiatrists; count III involves a separate medical negligence action against defendant Tracer; count IV involves a product liability action against defendant Michael Reese Hospital and Medical Center and defendant E. R. Squibb & Sons, Inc.; and count V involves a product liability action against defendant Michael Reese Hospital and Medical Center and defendant SmithKline Clinical Laboratories, Inc. In count II, plaintiff alleges that Tracer acted as the agent of Fine. Count VI, which involves a negligence action against defendant Daniel McCarthy, is not involved in the appeal. We reverse the dismissals of the five counts and remand for further proceedings.

We assume the following facts to be true based upon a reading of the composite allegations in the five counts of the third amended complaint. On August 1, 1978, McCarthy was being treated as a patient at the hospital by the two doctors. The doctors ordered that McCarthy be given the prescription drug Prolixin Decanoate, manufactured by Squibb & Sons, and the prescription drug Thorazine, manufactured by SmithKline. Hospital personnel then injected McCarthy with Prolixin Decanoate and gave him Thorazine for oral consumption. On the same day, McCarthy was discharged from the hospital. He then consumed an alcoholic beverage and drove his automobile with plaintiff as a passenger. The drugs Prolixin Decanoate and Thorazine diminished McCarthy’s mental and physical abilities, which caused McCarthy to lose control of the automobile. As a result, the automobile hit a tree. Plaintiff suffered severe and permanent injuries in the occurrence.

The gist of plaintiff’s actions is that the drug manufacturers failed to provide adequate warnings of the adverse effects of their drugs, and that the doctors and the hospital failed to warn their patient prior to his discharge from the hospital that the drugs would impair the patient’s mental and physical abilities, although defendants knew or should have known of the adverse effects of the drugs.

Defendants argue separately that they were properly dismissed because they owed no duty to plaintiff. As we view the case, whether the separate defendants owed a duty to plaintiff can be discussed as a single issue.

The existence or. nonexistence of a legal duty is a question of law to be determined by the court. This is so because the existence of a legal duty is not a palpable fact, but merely a legal conclusion that in certain generalized circumstances redress should be available to those who are injured as a proximate cause of either the acts or inactions of another. The broad factors to be considered in making this determination include (1) the foreseeability that the defendant’s acts or inactions will result in injury to the plaintiff, (2) the magnitude of the burden of guarding against the injury and the consequences of placing that burden upon the defendant, and (3) the desirability in terms of public policy of imposing a duty on the defendant to guard against the risk that is involved. See Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 356, 367 N.E.2d 1250, 1254; Cunis v. Brennan (1974), 56 Ill. 2d 372, 374, 308 N.E.2d 617, 618; Barnes v. Washington (1973), 56 Ill. 2d 22, 26, 29, 305 N.E.2d 535, 538, 539; Meiher v. Brown (1973), 54 Ill. 2d 539, 541, 544-45, 301 N.E.2d 307, 309-10; Orrico v. Beverly Bank (1982), 109 Ill. App. 3d 102, 105-06, 440 N.E.2d 253, 256.

With regard to the question of whether it was foreseeable that defendants’ failure to warn¹ would result in injury to plaintiff, we apply a standard of objective reasonableness. Under this standard, it is not essential that defendants should have foreseen the precise hazard or exact consequences which resulted from a failure to warn, nor is it essential that defendants should have foreseen the injuries to a specific person. A duty may exist to one who is unknown and remote in time and place. (See Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 357, 367 N.E.2d 1250, 1254-55; Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380, 50 N.E.2d 497, 503; Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 103, 197 N.E. 578, 582; Orrico v. Beverly Bank (1982), 109 Ill. App. 3d 102, 107, 440 N.E.2d 253, 257.) With these considerations in mind, we believe that the event that occurred was sufficiently foreseeable for the doctors, hospital and drug manufacturers to have known that their failure to adequately warn of the adverse effects of the drugs would result in injury to the plaintiff or other members of the general public.

Defendants argue that what occurred in this case was not reasonably foreseeable because McCarthy’s consumption of an alcoholic beverage and his negligent driving constitute superseding intervening causes of the occurrence. A superseding intervening cause is a subsequent independent action which breaks the causal relationship between the original wrong and the injury, and it, rather than the original wrong, causes the injury. However, the intervention of an independent action will not break a causal connection if the intervention of the independent action was itself reasonably foreseeable. (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380-81, 50 N.E.2d 497, 503-04; Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 104, 197 N.E. 578, 583; Orrico v. Beverly Bank (1982), 109 Ill. App. 3d 102, 107, 440 N.E.2d 253, 257.) In the present case, McCarthy's consumption of an alcoholic beverage, the manner of his driving and plaintiff’s presence in the automobile were all within the realm of reasonable foreseeability absent a pertinent warning by the respective defendants. Thus, defendants’ argument on this point is without merit.

We next address the magnitude of the burden of guarding against an injury to a member of the general public because of a failure to adequately warn of the adverse effects of prescription drugs and the consequences of placing that burden upon doctors, hospitals and prescription drug manufacturers. The doctors and the hospital argue that they should not owe a duty to an injured party who is merely a member of the general public and not their patient, because the imposition of a duty to a nonpatient would unjustly render them liable to an indeterminate class. In this same regard, the drug manufacturers argue that a prescription drug manufacturer’s duty to warn the medical profession does not cover third parties who do not use the drugs.² We do not find defendants’ arguments persuasive.

Plainly, the fast pace at which new drugs are presently being introduced and utilized demands that the public be protected from their varying adverse effects. Thus, we believe that doctors and hospitals have a duty to warn their patients of the adverse effects of drugs, and drug manufactrurers have a duty to warn the medical profession of the adverse effects of their drugs, and that these duties implicitly extend to cover members of the public who may be injured as a proximate cause of a failure to adequately warn. Moreover, we believe that the imposition of such a duty in favor of the public is not an undue burden to place upon doctors, hospitals and drug manufacturers in light of the great risks that are involved to every member of the public. In a balancing test, the rights and burdens of the members of the public whose injuries are proximately caused by the failure of doctors, hospitals and drug manufacturers to adequately warn of the adverse effects of drugs substantially outweigh the added burden to doctors, hospitals and drug manufacturers to be fully responsible for their wrongdoing. Additionally, the imposition of a pertinent duty to warn that implicitly extends to cover the general public would not make doctors, hospitals or drug manufacturers any more liable to an indeterminate class than are those in other fields and professions when a member of the general public is injured as a proximate cause of their wrongful acts or inactions. Finally, nothing in the record demonstrates that there would be a quid pro quo for society in return for the absolution of doctors, hospitals or manufacturers from their responsibility to the public for their failure to warn of the adverse effects of drugs. We therefore see no reason to discriminate in favor of doctors, hospitals or drug manufacturers at the expense of innocent victims.

We next examine the public policy considerations which pertain in extending the duty to warn that is involved here to cover members of the general public. Defendants contend that such an extension of their duty to warn would discourage them from treating patients with medicines that would “help them the most” and that it would “thwart the recent advances in drug therapy.” They also contend that it would open the door to limitless medical negligence suits by an infinite class of plaintiffs and that it would make them absolutely liable. These contentions miss the point.

The duty which is involved here simply requires a warning, not control or prevention. In this regard, we point out that the duty to warn would arise only if the doctors, hospitals or drug manufacturers know or should know of the adverse effects of a drug. The duty is plainly nonjudgmental. Moreover, we are speaking in this case only of a duty and not causation. Obviously, no defendant can be liable unless causation as well as breach of duty is proved. (See Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423-24, 328 N.E.2d 301, 305; Mahr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 563, 390 N.E.2d 1214, 1230-31.) Also, we are mindful that in personal injury and wrongful death cases involving medical negligence, expert witnesses in the same profession or field as the defendant are necessary to hold the defendant liable. Thus, the liability of defendants in medical negligence cases must be substantiated by their own peers. (See, e.g., Ill. Rev. Stat. 1983, ch. 110, pars. 2—622, 2—1013 through 2—1018 (eff. Aug. 15, 1985).) These are telling points which militate against defendants’ specific contentions.

Generally, the desirability in terms of public policy of imposing or extending any duty relating to doctors, hospitals and drug manufacturers must be determined by balancing dichotomous public concerns. The problem is to balance the just claims of people who are injured as a proximate cause of medical negligence and related causes “against the public’s claim not to be victimized by needlessly swollen medical costs.” (Editorial, Compromise on malpractice, Chicago Tribune, June 8, 1985, sec. 1, at 10.) For the reasons that we have already discussed, we do not believe that extending the duty that is involved here to cover members of the general public will needlessly swell medical costs. Rather, we believe that the public interest requires that members of the general public be entitled to full redress if they are injured as a proximate cause of the failure of doctors, hospitals or drug manufacturers to adequately warn of the adverse effects of drugs. Plainly, under a public policy analysis, concern for righteousness must be focused on the members of the public who are injured and suffer because of the medical negligence and related causes, rather than on the doctors, hospitals and drug manufacturers who commit the medical negligence and related wrongful acts that cause the injuries and suffering. The victims, not the wrongdoers, need protection. The wrongful acts must be curtailed, not the rights of the victims of the wrongful acts.

The hospital makes the additional argument that it cannot be liable for negligence here because the administration of drugs involves the decision to treat a patient in a particular manner, which is a medical question entirely within the discretion of the treating doctor, and the doctors were “neither employed nor controlled by the hospital.” This argument is misapplied, because the negligence count against the hospital involves the hospital’s own negligence for failure to warn, rather than a claim that the medical treatment itself was improper.

Moreover, the old conception that a hospital does not undertake to treat the patient no longer reflects reality. Plainly, hospitals do far more than merely furnish an edifice for treatment. Rather, they regularly employ on a salaried basis a staff of physicians, nurses, pharmacists, technicians, and medical administrative professionals, and, not insignificantly, the costs for these personnel are factored into the amount that patients are charged by the hospital. (See Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 332, 211 N.E.2d 253, 257.) Also, hospitals now advertise and promote the treatment and care that patients receive at their particular hospital (see, e.g., Chicago Sun-Times, June 30, 1985, Medical Centers —Special Pullout Section), and it is not uncommon for members of the general public to choose a particular hospital for treatment and care simply on the basis of the reputation of the hospital itself. It follows that hospitals must assume certain responsibilities for the care and treatment of their patients. (See Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 332, 211 N.E.2d 253, 257.) Within this context, we conclude that before a patient is discharged from a hospital, the hospital has a duty to warn the patient of the adverse effects of drugs that were administered by the hospital if the hospital knows or should know that the drugs will impair the patient’s mental or physical abilities, or will be potentially dangerous in combination with particular foods, beverages or other drugs.³ A patient should not be discharged from a hospital under circumstances which make the patient unknowingly a potential danger to himself or herself, and the public at large, because of drugs administered by hospital personnel. Here, we should bear in mind that the patient is charged by the hospital for both the services of the hospital personnel who administered the drugs as well as for the drugs themselves⁴ and that the duty arises only when the hospital knows or should know of the adverse effects of the drugs.

We therefore conclude that each of the defendants owed a legal duty to the plaintiff as stated in this opinion.⁵ Whether defendants breached their respective duties is to be determined by the trier of fact.

Next, the hospital makes the argument that it cannot be liable under the doctrine of strict liability for failure to warn of the adverse effects of drugs that it administers because it simply provides a service in that regard. The hospital’s argument would have merit if this case involved injurious results of treatment (see Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 289, 415 N.E.2d 390, 393) or danger created by the medical decision to administer the drugs (see Dubin v. Michael Reese Hospital & Medical Center (1980), 83 Ill. 2d 277, 281, 415 N.E.2d 350, 352), rather than the unreasonably dangerous condition of the drugs themselves if no warning of the adverse effects is given to the patient. (Compare Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 447-53, 266 N.E.2d 897, 899-902.) Here, all of the elements for a product liability action have been sufficiently alleged: the case involves a product, i.e., drugs; the hospital was within the distribution chain of the product;⁶ the product was unreasonably dangerous without adequate warning of its adverse effects; the hospital knew or should have known of the unreasonably dangerous condition; the unreasonably dangerous condition existed at the time the product left the hospital’s control; and the unreasonably dangerous condition of the product, i.e., the failure to warn, was a proximate cause of plaintiff’s injuries. Thus, this is a classic product liability case if the alleged facts are proved. (See Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194; Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 266 N.E.2d 897; Mohr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 559-60, 390 N.E.2d 1214, 1228-29.) We see no good reason for engrafting an exception in favor of hospitals onto the strict tort liability theory, which in effect, is what the hospital would have us do. (Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 452, 266 N.E.2d 897, 902.) The hospital’s argument has no merit.

Finally, we address the hospital’s argument that the product liability count against it must be dismissed pursuant to Ill. Rev. Stat. 1983, ch. 110, par. 2—621. The statute provides for the dismissal of defendants other than manufacturers in product liability actions under certain circumstances. However, the statute applies only to causes of action accruing on or after September 24, 1979. In the present case, plaintiff was injured on August 1, 1978. Thus, the hospital’s argument is baseless.

Accordingly, we hold that each defendant owed a duty to warn as stated in this opinion and that the duty implicitly extended to cover plaintiff and other members of the general public. Therefore, the counts against the respective defendants in the third amended complaint sufficiently state a cause of action. The dismissals are reversed and the case is remanded for further proceedings.

Reversed and remanded.

WHITE, P.J., concurs.

1 Since a duty to warn includes a duty to adequately warn (Mahr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 562, 390 N.E.2d 1214, 1230), when we refer to a failure to warn in the text, we implicitly include a failure to adequately warn.

2 The adequacy of a prescription drug manufacturer’s warnings is determined by taking into account all aspects of the warnings, including the content of the warnings and how and to whom the warnings are conveyed. As an example, a drug manufacturer may communicate product information to the medical profession in a number of ways: package inserts, the Physicians’ Desk Reference, “Dear Doctor” letters and detailment. Ultimately, the sufficiency of the warnings is not resolved judicially by pointing to a single document or act, but remains a question to be resolved by the trier of fact in light of all the information provided by the manufacturer and all the information that it was reasonably possible to provide. (See Mahr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 562, 390 N.E.2d 1214, 1230.) The trier of fact may consider warnings given by drug manufacturers to physicians to be adequate (e.g., Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 553, 356 N.E.2d 779, 784) or inadequate (e.g., Mahr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 563-65, 390 N.E.2d 1214, 1231-32). Also, with regard to oral contraceptives, the drug manufacturer may have a duty to warn the consumer. (Stephens v. G.D. Searle & Co. (E.D. Mich. 1985), 602 F. Supp. 379; MacDonald v. Ortho Pharmaceutical Corp. (Mass. 1985), 475 N.E.2d 65.) Here, since the counts against the drug manufacturers were dismissed because of a failure to state a cause of action (Ill. Rev. Stat. 1983, ch. 110, par. 2—615), the factual question as to the adequacy of warnings that allegedly were included as package inserts or that may have been given by the drug manufacturers to the medical profession is not before us.

3 The hospital is not absolved from responsibility merely because the attending physician has the same responsibility. To illustrate, in Darling, the court stated: “At that point it became the nurses’ duty to inform the attending physician, and if he failed to act, to advise the hospital authorities so that appropriate action might be taken.” 33 Ill. 2d 326, 333, 211 N.E.2d 253, 258.

4 We presume that these costs are either factored into the patient’s hospital bill or that they appear expressly on the bill itself.

5 The duty of each defendant to warn is nondelegable. To illustrate, the negligent failure of the doctors to learn of the risks of the drugs from sources other than the drug manufacturers would not relieve the drug manufacturers of liability for harm resulting from their own failure to adequately warn. See Mahr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 566, 390 N.E.2d 1214, 1233. See also n.3, above.

6 On this point, we note that hospitals charge patients for the drugs that they dispense. Thus, a sale is involved, and the hospital is clearly within the distribution chain of the product. Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 447-53, 266 N.E.2d 897, 899-902.