Kirk v. Michael Reese Hosp. and Medical Center

Decision Date13 July 1987
Docket NumberNos. 62700-,s. 62700-
Parties, 111 Ill.Dec. 944, 56 USLW 2060, Prod.Liab.Rep. (CCH) P 11,466 James D. KIRK, Appellee, v. MICHAEL REESE HOSPITAL AND MEDICAL CENTER et al., Appellants. to 62704.
CourtIllinois Supreme Court

Lord, Bissell & Brook, Chicago, for Michael Reese Hosp., and Medical Center, appellant; Harold L. Jacobson, Hugh C. Griffin, of counsel.

Ann W. Regan, Kathleen E. Kiernan, Wildman, Harrold, Allen & Dixon, Chicago, for Henry K. Fine, M.D., petitioner.

Kay E. Pinkus, Daniel J. Mulvanny, Illinois Hosp. Ass'n, Naperville, for Illinois Hosp. Ass'n.

D. Kendall Griffith, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for Metropolitan Chicago Healthcare Council.

Geoffrey R.W. Smith, Washington, D.C., for Pharmaceutical Mfrs. Ass'n.

Baker & McKenzie, Chicago, for defendant SmithKline Beckman Corp.; Francis D. Morrissey, Thomas R. Nelson, John T. Rank, Donald J. Hayden, of counsel.

Burditt, Bowles & Radzius, Ltd., Chicago, for E.R. Squibb & Sons, Inc., defendant-petitioner; Robert G. Epsteen, Burditt, Bowles & Radzius, Ltd., of counsel.

Horwitz, Horwitz & Associates, Ltd., Chicago, for James D. Kirk, appellee; Andrew J. Horwitz, Mitchell Horwitz, Chicago, and Dario A. Garibaldi, Flossmoor, of counsel.

Illinois Trial Lawyers Ass'n, Chicago, for amicus curiae; Robert J. Glenn, David A. Novoselsky, Kathleen M. Krist, of counsel.

Sweeney and Riman, Ltd., Chicago, for Irving H. Tracer M.D. appellant; Mary Jo Connelly, Georgene M. Wilson, of counsel.

Cassidy & Mueller, Peoria, for amicus curiae, Illinois Ass'n of Defense Trial Counsel (IDC); David B. Mueller, Timothy J. Cassidy, of counsel.

Justice WARD delivered the opinion of the court:

The five causes consolidated in this appeal arise from one personal injury action. The plaintiff, James D. Kirk, filed a six-count complaint in the circuit court of Cook County against six defendants, five of whom are involved in this appeal. The defendants moved to dismiss the plaintiff's third amended complaint for failure to state a cause of action; the trial court dismissed the action against five of the defendants. On the plaintiff's appeal from the dismissal, the appellate court reversed the dismissals of the five counts and remanded for further proceedings. The defendants filed petitions for leave to appeal in this court under our Rule 315(a) (103 Ill.2d R. 315(a)); we allowed the petitions and consolidated the five appeals for review.

Because this appeal is before the court on the defendants' motion to dismiss, all well-pleaded facts will be regarded as true. (Katz v. Belmont National Bank (1986), 112 Ill.2d 64, 67, 96 Ill.Dec. 697, 491 N.E.2d 1157; Mein v. Masonite Corp. (1985), 109 Ill.2d 1, 7, 92 Ill.Dec. 501, 485 N.E.2d 312.) The plaintiff was injured August 1, 1978, while a passenger in a car driven by Daniel McCarthy when the car struck a tree. McCarthy had been a psychiatric patient at Michael Reese Hospital and Medical Center (hereafter Michael Reese), where he was treated by Dr. Irving H. Tracer and Dr. Henry K. Fine. The plaintiff alleges that Dr. Tracer was rendering medical treatment to McCarthy in the capacity of an agent, servant, or employee of Dr. Fine. The plaintiff alleges that Dr. Tracer, Dr. Fine, or their agents ordered prescription drugs in treating McCarthy. The drug Thorazine, which is manufactured by the defendant SmithKline Beckman Corp. (hereafter SmithKline), had been prescribed and McCarthy also had been given Prolixin Decanoate, which is manufactured by the defendant E.R. Squibb & Sons, Inc. (hereafter Squibb), on the day he was discharged from the hospital. McCarthy, following his discharge from Michael Reese, consumed an alcoholic drink. Later in the day, Kirk was a passenger in the car driven by McCarthy and was injured when the car left the roadway and struck a tree in Chicago Heights.

In count I of the plaintiff's third amended complaint, he seeks recovery from Michael Reese on the theory that the hospital negligently failed to adequately warn McCarthy that the prescribed drugs administered would diminish his physical and mental abilities. Counts II and III seek recovery from Drs. Tracer and Fine, respectively, on the theory that the physicians knew or should have known that the drugs would diminish McCarthy's mental abilities and that they negligently failed to warn McCarthy. Counts IV and V, both of which seek recovery against Michael Reese, as well as Squibb and SmithKline, respectively, are based on a strict liability theory and allege that the drugs were in an unreasonably dangerous condition because the manufacturers failed to adequately warn of the drugs' dangerous propensities, that is, that the drugs would diminish the physical and mental abilities of the user, McCarthy. Count VI seeks recovery from McCarthy for his alleged negligence in operating the car. The trial court, after memoranda were filed and numerous arguments were heard, granted the motions of the hospital, two doctors, and two drug companies to dismiss. The trial court also denied the plaintiff's oral motion to file a fourth amended complaint. Count VI against McCarthy was not dismissed and is not involved in this appeal.

The appellate court, with one justice dissenting, reversed and remanded the dismissed counts for trial. (136 Ill.App.3d 945, 91 Ill.Dec. 420, 483 N.E.2d 906.) The appellate court, considering whether the defendants owed a duty to the plaintiff as but a single issue, held that the doctors, hospital, and drug manufacturers each had a duty to adequately warn McCarthy of the adverse effects of the drugs, which duty, the court stated, was implicitly extended to cover members of the public who may be injured as a proximate cause of the failure to adequately warn (136 Ill.App.3d 945, 952, 91 Ill.Dec. 420, 483 N.E.2d 906). Too, the appellate court held the hospital was open to liability on a strict liability theory for failure to warn McCarthy of the effects of the prescribed drugs. As stated, the five defendants filed petitions for leave to appeal; their petitions were initially denied, but upon reconsideration, they allowed and consolidated for review. Briefs amici curiae have been filed by five organizations. The Illinois Trial Lawyers Association, as amicus, supports the plaintiff's arguments that the appellate court decision should be affirmed. Another amicus, the Pharmaceutical Manufacturers Association, supports the arguments of defendants SmithKline and Squibb. The Illinois Hospital Association and Metropolitan Chicago Healthcare Council, in a joint amicus brief, support Michael Reese's views and particularly argue against liability being imposed toward the hospital under strict liability principles. The Illinois Association of Defense Trial Counsel generally argues to reverse the appellate court's decision and specifically supports the drug manufacturers' views.

Because we are reviewing the dismissal of a complaint for failure to state a cause of action, we must determine the legal sufficiency of the complaint. (Katz v. Belmont National Bank (1986), 112 Ill.2d 64, 67, 96 Ill.Dec. 697, 491 N.E.2d 1157.) Pleadings are to be liberally construed with a view to doing justice between the parties (Ill.Rev.Stat.1985, ch. 110, par. 2-603(c); Pelham v. Griesheimer (1982), 92 Ill.2d 13, 17, 64 Ill.Dec. 544, 440 N.E.2d 96), but that does not lessen the obligation of the plaintiff to set out facts necessary for recovery under the theory asserted in the complaint. (Teter v. Clemens (1986), 112 Ill.2d 252, 256-57, 97 Ill.Dec. 467, 492 N.E.2d 1340.) Section 402A of the Restatement (Second) of Torts (1965), which this court has previously followed (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182), would subject a seller or manufacturer of a product to liability if the product is sold "in a defective condition unreasonably dangerous" to an ultimate user or consumer who is injured by the product. It is recognized that a failure to warn of a product's dangerous propensities may serve as the basis for holding a manufacturer strictly liable in tort. (Hammond v. North American Asbestos Corp. (1983), 97 Ill.2d 195, 206, 73 Ill.Dec. 350, 454 N.E.2d 210; Woodill v. Parke Davis & Co. (1980), 79 Ill.2d 26, 29, 37 Ill.Dec. 304, 402 N.E.2d 194; Restatement (Second) of Torts sec. 402A, comment j (1965).) A prescription drug may be deemed unreasonably dangerous because of the absence of an adequate warning accompanying the product as the product may be "unavoidably unsafe" without such warning. Restatement (Second) of Torts sec. 402A, comment k (1965); Lawson v. G.D. Searle & Co. (1976), 64 Ill.2d 543, 550-51, 1 Ill.Dec. 497, 356 N.E.2d 779.

The plaintiff asserts that, while the class of persons to whom the warning is required to be given may be very limited, the class of persons to whom the duty is owed includes the public generally. He contends also that the appellate court holding does not abolish or diminish the "learned intermediary" doctrine. The plaintiff, although he argued at the trial proceedings that the pharmaceutical companies owed a duty to warn the patients who use the drugs, now accepts Squibb's and SmithKline's position that adequate warnings are to be given to physicians only and not to the public generally. Our appellate court has previously adopted the learned intermediary doctrine (Mahr v. G. D. Searle & Co. (1979), 72 Ill.App.3d 540, 28 Ill.Dec. 624, 390 N.E.2d 1214 (applying Texas law); Hatfield v. Sandoz-Wander, Inc. (1984), 124 Ill.App.3d 780, 80 Ill.Dec. 122, 464 N.E.2d 1105 (applying Indiana law); Eldridge v. Eli Lilly & Co. (1985), 138 Ill.App.3d 124, 92 Ill.Dec. 740, 485 N.E.2d 551), but this court had not directly considered the issue. The rule, as adopted in numerous jurisdictions, provides that manufacturers of prescription drugs have a duty to warn prescribing physicians of the drugs' known...

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