Happel v. Wal-Mart Stores, Inc.

• Decision Date: 21 March 2002
• Docket Number: No. 90482.,90482.
• Citation: 262 Ill.Dec. 815,766 N.E.2d 1118,199 Ill.2d 179
• Parties: Heidi HAPPEL et al., Appellees, v. WAL-MART STORES, INC., d/b/a Wal-Mart Pharmacy, Appellant.
• Court: Illinois Supreme Court

766 N.E.2d 1118

199 Ill.2d 179

262 Ill.Dec. 815

Heidi HAPPEL et al., Appellees, v. WAL-MART STORES, INC., d/b/a Wal-Mart Pharmacy, Appellant.

No. 90482.

Supreme Court of Illinois.

March 21, 2002.

James F. McCluskey, Mark W. Monroe, James P. Marsh, of Momkus, Ozog & McCluskey L.L.C., Downers Grove, for appellant.

Kenneth C. Chessick, John W. Fisk, Patricia E. Raymond, Joan R. Stohl, Schaumburg, for appellees.

S. Lawrence Kocot, Don L. Bell II, Alexandria, Virginia, for amicus curiae National Association of Chain Drug Stores, Inc.

John F. Atkinson, Dale J. Atkinson, Julia C. Works, Evanston, for amicus curiae National Associations of Boards of Pharmacy.

Justice MCMORROW delivered the opinion of the court:

The central issue in this appeal is whether a pharmacy has a duty to warn about a known drug contraindication¹ where the pharmacy is aware of a customer's drug allergies and knows that the medication prescribed by the customer's physician is contraindicated for a person with those allergies. Plaintiff Heidi Happel, who is allergic to aspirin, ibuprofen, and acetaminophen, experienced a severe reaction after taking Toradol, a pain reliever prescribed by her physician, Dr. Zbigniew T. Lorenc. Toradol should not be taken by persons who are allergic to aspirin and other nonsteroidal anti-inflammatory drugs (NSAIDs). Heidi and her husband, plaintiff Kent Happel, subsequently brought a negligence action against Dr. Lorenc and Wal-Mart Stores, Inc., whose pharmacy in McHenry, Illinois, filled the prescription. Plaintiffs settled with Dr. Lorenc, and the trial court granted Wal-Mart's motion for summary judgment. The appellate court reversed (316 Ill. App.3d 621, 250 Ill.Dec. 28, 737 N.E.2d 650), and we granted Wal-Mart's petition for leave to appeal. 177 Ill.2d R. 315. For the reasons set forth below, we affirm the judgment of the appellate court.

BACKGROUND

On August 4, 1993, Heidi called Dr. Lorenc's office complaining of severe menstrual cramps. She sought a more effective pain reliever, and Dr. Lorenc prescribed Toradol. His office telephoned the prescription to the Wal-Mart pharmacy in McHenry, Illinois. Dr. Lorenc had been treating Heidi since December 1992, and he knew of her drug allergies. However, he stated in his deposition that on August 4, 1993, he did not know that Toradol was contraindicated for patients with allergies to aspirin. If he had known this, he would not have prescribed Toradol for Heidi.

Prior to August 4, 1993, Heidi had been to the Wal-Mart pharmacy in McHenry about six times to have other prescriptions filled. Each time she went, pharmacy workers asked her if she had any drug allergies, and each time she told them she was allergic to aspirin, acetaminophen, and ibuprofen. Wal-Mart pharmacy manager Steven Odes testified in his deposition that in August 1993, it was the pharmacy's policy and procedure to ask customers about their known allergies prior to dispensing medication. The purpose of this practice, Odes said, was to alert the pharmacist to any drug interactions or allergies. Both Odes and Florence Bowser, another of defendant's pharmacists, testified that Heidi's allergy information was in the pharmacy's computer system and available to pharmacists on August 4, 1993, when Heidi's Toradol prescription was filled.

Bowser testified in her deposition that she was working at the Wal-Mart pharmacy on August 4, 1993, but she believed that Odes was also on duty that day. Bowser took the call from Dr. Lorenc's office and wrote down the Toradol prescription, but she did not remember actually filling the prescription. She said she had "no memory of the entire incident." Odes stated that he did not work at the pharmacy on August 4, 1993, and that Bowser was the only pharmacist on duty and therefore she filled the prescription. Odes also stated that Bowser would have had available to her the information that Toradol should not be given to patients with allergies to aspirin or other NSAIDs. According to Odes, Bowser "would know if there was a contraindication." Bowser indicated that she was aware that Toradol was contraindicated for persons who were sensitive to aspirin and ibuprofen.

If the Toradol information was in the pharmacy's computer, a "drug interaction" warning would have flashed across the screen, halting the prescription process for customers such as Heidi for whom Toradol was contraindicated. At that point, the pharmacist was to call the physician and notify him of the contraindication. Bowser did not remember calling Dr. Lorenc about Heidi's prescription, nor did she remember seeing any documentation indicating that she made such a call.

If, after being notified of a contraindication, a physician wanted the prescription filled anyway, the pharmacist would have to override the computer system by entering a special code. Odes testified that in order for Heidi's Toradol prescription to have been filled on August 4, 1993, Bowser would have had to override the system. He agreed that in such circumstances, to override the computer and fill the prescription without first contacting the physician would be a deviation from the standard of care applicable to pharmacists. Bowser testified that a pharmacist is required to know a customer's drug allergies and contraindications.

Once Heidi learned on August 4, 1993, that the prescription had been called in to the Wal-Mart pharmacy, she telephoned her husband, Kent, at work, and asked him to pick it up. Prior to this date, neither she nor Kent had ever heard of Toradol, which is an NSAID, as is aspirin. Kent went to the pharmacy to pick up the prescription, but before it was filled, a pharmacy worker asked him about Heidi's drug allergies. Kent informed the worker that Heidi was allergic to aspirin, ibuprofen, and acetaminophen.

There were directions on the bottle that Heidi received from the pharmacy, but there was no warning about contraindications. Heidi took the first dose of Toradol at about 4 p.m. on August 4, and within 40 minutes she began to experience respiratory problems including a tightness in her chest. She began a breathing treatment with a nebulizer, and called the pharmacy to ask if she could be having a reaction to Toradol. Her call was disconnected. She called again, and was told that there should be no drug reaction problem. Heidi then called a friend who was a pharmacist and was aware of her allergies. He told her to begin a nebulizer treatment if she had not already done so, and to go to the emergency room if her condition worsened. She went to the emergency room, and was found to be experiencing anaphylactic shock.² Heidi testified in her deposition that, as a result of taking Toradol, she subsequently experienced more frequent asthma attacks, as well as seizures and a worsening of her multiple sclerosis.

On September 30, 1994, plaintiffs filed a negligence action against Dr. Lorenc and Wal-Mart. On March 8, 1999, Wal-Mart filed a motion for summary judgment, and on March 15, 1999, plaintiffs settled with Dr. Lorenc and dismissed him from their complaint. Plaintiffs then moved to amend their complaint to add punitive damages claims. The trial court denied this request as well as Wal-Mart's motion for summary judgment. Plaintiffs filed an amended motion seeking to add punitive damages claims to their complaint.

Defendant Wal-Mart filed a motion to reconsider the denial of summary judgment, arguing that there was no legal duty for it to warn, and it did not voluntarily assume such a duty. On September 17, 1999, the trial court granted summary judgment in favor of defendant and denied plaintiffs' motion to amend their complaint. On appeal, the appellate court reversed the granting of summary judgment, concluding that defendant Wal-Mart owed plaintiffs a duty to warn. 316 Ill.App.3d 621, 250 Ill.Dec. 28, 737 N.E.2d 650. However, the court made it clear that this duty was a narrow one:

"[U]nder the circumstances here, where defendant knew of Heidi's allergies, where defendant knew that Toradol was contraindicated for a person with Heidi's allergies, and where defendant knew that injury or death was substantially certain to result, defendant had an affirmative duty to disclose, either to Dr. Lorenc or to Heidi, the information that Heidi should not take Toradol." 316 Ill.App.3d at 629, 250 Ill.Dec. 28, 737 N.E.2d 650.

The appellate court also affirmed the trial court's denial of plaintiffs' motion to amend their complaint.

ANALYSIS

After granting Wal-Mart's petition for leave to appeal (177 Ill.2d R. 315), we granted leave to the National Association of Chain Drug Stores to file an amicus curiae brief supporting defendant's arguments. We also granted leave for the National Association of Boards of Pharmacy (NABP) to file an amicus curiae brief supporting plaintiffs' arguments. Thereafter, Wal-Mart filed a motion before this court seeking to strike the NABP's brief for including materials outside the record. See Zurich Insurance Co. v. Raymark Industries, Inc., 118 Ill.2d 23, 112 Ill.Dec. 684, 514 N.E.2d 150 (1987); Jenkins v. Wu, 102 Ill.2d 468, 82 Ill.Dec. 382, 468 N.E.2d 1162 (1984). We ordered the motion taken with the case. We note that Wal-Mart had by motion objected to the same materials before the appellate court. That court denied the motion. Having reviewed the NABP's brief, we find, similar to the appellate court, that the materials provided by the NABP are relevant to standards of practice and care, and that such matters were raised in pleadings and depositions in this case. We therefore deny Wal-Mart's motion to strike the NABP's brief.

This matter is before this court on Wal-Mart's motion for summary judgment. In cases involving motions for summary judgment, we conduct a de novo review of the evidence in the record. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 113, 208 Ill.Dec. 662, 649 N.E.2d 1323 (1995). The purpose of a summary judgment proceeding is not to try an issue...