Van Hattem v. K Mart Corp.

719 N.E.2d 212, 308 Ill. App. 3d 121, 241 Ill. Dec. 351
CourtAppellate Court of Illinois
DecidedSeptember 30, 1999
Docket1-98-2423
StatusPublished
Cited by26 cases

This text of 719 N.E.2d 212 (Van Hattem v. K Mart Corp.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Van Hattem v. K Mart Corp., 719 N.E.2d 212, 308 Ill. App. 3d 121, 241 Ill. Dec. 351 (Ill. Ct. App. 1999).

Opinion

JUSTICE HARTMAN

delivered the opinion of the court:

Hazel Van Hattem (Hazel), Nancy Witvoet, Donna Jonkman and Marilyn Neumeyer, in their capacities as administrators of Ernest Van Hattem’s estate (collectively, plaintiffs), brought a wrongful death and survival action against Dr. James S. Habib, alleging that he misdiagnosed and prescribed inappropriate medication to Ernest Van Hattem (Ernest); and against K mart Corporation (K mart), alleging that a K mart pharmacy misfilled a prescription for Ernest, resulting in his death. A jury returned a verdict for plaintiffs against K mart, but against plaintiffs and for Dr. Habib. The circuit court entered an $810,000 judgment for plaintiffs and against K mart. K mart appeals, contending that the court erred in (1) failing to grant a mistrial due to alleged prejudice resulting from a television news investigative story about pharmacy misfills which aired during the week of trial; (2) refusing K mart’s request for a special interrogatory regarding Hazel’s alleged contributory negligence; (3) denying K mart’s motion in limine which sought to bar admission of the contents of a prescription bottle for failure to establish a proper chain of custody for that evidence; and (4) in denying K mart’s motion in limine to bar testimony from two expert witnesses.

The evidence adduced at trial established that, on June 15, 1995, 76-year-old Ernest died at St. James Hospital following an intracerebral hemorrhage, or massive brain bleed. At the time of his death, Ernest was taking several prescription medications, including Coumadin, a drug for reducing clotting factors and thinning the blood.

Dr. Habib, Ernest’s physician, had first prescribed Coumadin for him during a three-month period in 1991 to prevent phlebitis, for which he had been hospitalized. Thereafter, in June 1994, after being hospitalized for acute thrombophlebitis, Ernest again was prescribed a two-milligram dosage (one pill) of Coumadin once per day by Dr. Habib. On July 15, 1994, Dr. Habib increased Ernest’s dosage from six milligrams every three days to eight milligrams every three days. His specific instructions were for Ernest to take one pill on the first day, one pill on the second day and two pills on the third day, repeating that dosage, or a 1-1-2 regimen. 1

On October 14, 1994, Dr. Habib again prescribed a 1-1-2 regimen of two-milligram-strength Coumadin for Ernest. The prescription was filled at K mart’s Steger pharmacy, as it had been by the pharmacy previous times: on June 17, 1994, on July 29, 1994, and on September 7, 1994. Refills of the October 1994 Coumadin prescription also were filled by the K mart pharmacy on December 29, 1994, March 10, 1995, and May 30, 1995.

Each time Dr. Habib prescribed Coumadin, he warned Ernest about the dangers associated with that drug, specifically abnormal bleeding. Upon his discharges from the hospital, Ernest also was warned about Coumadin and was told to report any unusual symptoms or bleeding to his doctor. In addition, each time the K mart pharmacy filled Ernest’s Coumadin prescription, written warnings were provided and stapled to the bag containing the prescription bottle.

According to Hazel, who picked up all Ernest’s prescriptions at K mart’s Steger pharmacy, warnings were attached to each prescription bag, but she regularly removed those warnings before she gave Ernest the medication. 2 Although she could not specifically remember picking up the May 30, 1995, Coumadin refill, Hazel testified that it was her custom to telephone a refill request to the Steger pharmacy whenever Ernest placed his pill bottle by the telephone. She then brought the prescription home, removed the warning labels and receipt and gave the bag containing the prescription bottle to Ernest. She believed she had done this for the May 30, 1995, prescription, but could not remember specifically. After giving her husband his prescription, she did not monitor the manner in which he took his medication. Ernest took his own medicine and kept a “drug diary,” entering a check mark each time he took medication.

While Ernest was on Coumadin, Dr. Habib checked his prothrombin time (the number of seconds it takes for a plasma sample to clot) monthly. From June 1994 until June 1995, Ernest’s prothrombin time remained therapeutic. On June 14, 1995, after he was brought to the hospital, however, Ernest’s prothrombin time was abnormally high and more than twice the previous result from a test taken on May 24, 1995.

On the afternoon of June 13, 1995, Hazel and Ernest were vacationing in Dowagiac, Michigan. There, Ernest remarked to a friend that he might have passed blood in his urine. Ernest’s friend advised him to see his doctor. That evening, after returning to their home in Crete, Illinois, Hazel noticed spatters of blood in front of their toilet; Ernest told her he would see his doctor in the morning about his “prostate.” Ernest, who suffered from migraines, also complained of a headache. The next morning, Hazel found her husband unconscious and bleeding from his mouth and nose. Paramedics were called and Ernest was transported to St. James Hospital. 3

On June 15, 1995, while Ernest was in the hospital, Hazel remembered the warnings about Coumadin and bleeding. At home, she removed the Coumadin prescription bottle from the drawer in their home where her husband kept it, looked at its contents, and noticed the number “5” on the 79 pills remaining in the bottle, although the prescription label indicated that the dosage was two milligrams. While at the hospital, the Van Hattems’ daughter Marilyn Neumeyer, a registered nurse since 1968, overheard her mother express concern that the Coumadin prescription bottle contained pills imprinted with a “5.” Neumeyer then requested a Physician’s Desk Reference and saw that the number “5” on the pills meant that they were five-milligram strength.

On June 16, 1995, after Ernest’s death, one of his sons-in-law brought the subject Coumadin prescription bottle to his niece, Julie Witvoet, a pharmacist. Witvoet, who had been a licensed pharmacist for three years, identified the pills as five milligrams in strength, not the two-milligram strength set forth on the prescription label.

Immediately, the Van Hattem family placed the prescription bottle containing the pills in a basement safe and contacted their attorney, who then placed the prescription bottle in a bank safe deposit box. On September 6, 1995, plaintiffs filed the present suit.

Prior to trial, K mart sought to bar, inter alia, admission of the prescription bottle and its contents. Arguing plaintiffs could not establish that the 79 five-milligram-strength pills contained in the prescription bottle were in substantially the same condition as when K mart allegedly had given them to Hazel, K mart asserted that a proper chain of custody could not be established. The circuit court denied K mart’s motion in limine but allowed K mart “free rein” at trial to argue that the pills were not provided by its pharmacy.

At trial, further evidence was presented as to K mart’s custom and practice in filling prescriptions.

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Cite This Page — Counsel Stack

Bluebook (online)
719 N.E.2d 212, 308 Ill. App. 3d 121, 241 Ill. Dec. 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-hattem-v-k-mart-corp-illappct-1999.