Kirk v. Michael Reese Hosp. and Medical Center

• Decision Date: 28 August 1985
• Docket Number: No. 81-2408,81-2408
• Citation: 136 Ill.App.3d 945,91 Ill.Dec. 420,483 N.E.2d 906
• Parties: , 91 Ill.Dec. 420, 54 USLW 2158, Prod.Liab.Rep. (CCH) P 10,744 James D. KIRK, Plaintiff-Appellant, v. MICHAEL REESE HOSPITAL AND MEDICAL CENTER; Irving H. Tracer, M.D.; Henry K. Fine, M.D.; E.R. Squibb & Sons, Inc.; SmithKline Clinical Laboratories, Inc.; Defendants-Appellees, and Daniel McCarthy, Defendant.
• Court: United States Appellate Court of Illinois

Page 906

483 N.E.2d 906

136 Ill.App.3d 945, 91 Ill.Dec. 420,

54 USLW 2158,

Prod.Liab.Rep. (CCH) P 10,744

James D. KIRK, Plaintiff-Appellant, v.MICHAEL REESE HOSPITAL AND MEDICAL CENTER; Irving H Tracer, M.D.; Henry K. Fine, M.D.; E.R. Squibb &amp Sons, Inc.; SmithKline Clinical Laboratories, Inc.Defendants-Appellees and Daniel McCarthy, Defendant.

No. 81-2408.

Appellate Court of Illinois, First District, Third Division.

Aug. 28, 1985.

Rehearing Denied Oct. 16, 1985

Andrew J. Horwitz & Associates, Chicago (Andrew J. Horwitz, Michael Horwitz and Dario Garibaldi, Chicago, of counsel) for plaintiff-appellant.

Lord, Bissell & Brook, Chicago, for Michael Reese Hosp.

Sweeney & Riman, Ltd., Chicago, for Irving H. Tracer, M.D.

Wildman, Harrold, Allen & Dixon, Chicago, for Henry K. Fine, M.D.

Burditt & Calkins, Chicago, for E.R. Squibb & Sons.

Baker & McKenzie, Chicago, for SmithKline Corp.

RIZZI, Justice:

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 1 involves a negligence action against defendantMichael Reese Hospital and Medical Center; count 2 involves a medical negligence action against defendantsIrving H. Tracer, M.D., and Henry K. Fine, M.D., both of whom are psychiatrists; count 3 involves a separate medical negligence action against defendant Tracer; count 4 involves a product liability action against defendantMichael Reese Hospital and Medical Center and defendantE.R. Squibb & Sons, Inc.; and count 5 involves a product liability action against defendantMichael Reese Hospital and Medical Center and defendantSmithKline Clinical Laboratories, Inc.In count 2, plaintiff alleges that Tracer acted as the agent of Fine.Count 6, which involves a negligence action against defendantDaniel 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 viewthe 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.SeeRenslow v. Mennonite Hospital(1977), 67 Ill.2d 348, 356, 10 Ill.Dec. 484, 488, 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;Mieher 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, 64 Ill.Dec. 701, 704, 440 N.E.2d 253, 256.

With regard to the question of whether it was foreseeable that defendants' failure to warn ¹ 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.SeeRenslow, 67 Ill.2d at 357, 10 Ill.Dec. at 488-89, 367 N.E.2d at 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, 109 Ill.App.3d at 107, 64 Ill.Dec. at 705, 440 N.E.2d at 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, 383 Ill. at 380-81, 50 N.E.2d at 503-04;Wintersteen, 361 Ill. at 104, 197 N.E. at 583;Orrico, 109 Ill.App.3d at 107, 64 Ill.Dec. at 705, 440 N.E.2d at 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 non-patient 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.²We 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 manufacturers have a duty to warn the medical profession of the adverse effects of their drug, and that these duties implicitly extend to cover members of the public who may be injured as a proximate cause of the 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 ...