Nichols v. Clare Community Hosp.

• Decision Date: 19 August 1991
• Docket Number: Docket No. 124637
• Citation: 190 Mich.App. 679,476 N.W.2d 493
• Parties: David Lee NICHOLS and Barbara Nichols, Plaintiffs-Appellees, v. CLARE COMMUNITY HOSPITAL and Elmer C. Shurlow, D.O., Defendants-Third-Party Plaintiffs-Appellants, v. BURROUGHS WELLCOME COMPANY, Third-Party-Defendant-Appellee. 190 Mich.App. 679, 476 N.W.2d 493, Prod.Liab.Rep.(CCH)P. 12,980
• Court: Court of Appeal of Michigan — District of US

Page 493

476 N.W.2d 493

David Lee NICHOLS and Barbara Nichols, Plaintiffs-Appellees, v. CLARE COMMUNITY HOSPITAL and Elmer C. Shurlow, D.O., Defendants-Third-Party Plaintiffs-Appellants, v. BURROUGHS WELLCOME COMPANY, Third-Party-Defendant-Appellee.

Docket No. 124637.

190 Mich.App. 679, 476 N.W.2d 493, Prod.Liab.Rep.(CCH)P.

12,980

Court of Appeals of Michigan.

Submitted Feb. 5, 1991, at Grand Rapids.

Decided Aug. 19, 1991, at 9:30 a.m.

Released for Publication Nov. 18, 1991.

[190 MICHAPP 680] Sullivan, Ward, Bone, Tyler, Fiott & Asher, P.C. by Dennis K. Taylor, Traverse City, for Clare Community Hosp. and Elmer C. Shurlow, D.O.

Nystrom, Nystrom & Hitchcock by Stephen J. Hitchcock, Bloomfield Hills, for Burroughs Wellcome Co.

Before MICHAEL J. KELLY, P.J., and DOCTOROFF and NEFF, JJ.

NEFF, Judge.

Plaintiffs brought a malpractice claim against Clare Community Hospital and Elmer C. Shurlow, D.O., alleging that Dr. Shurlow negligently prescribed Cortisporin ointment to David Nichols, resulting in loss of vision in his right eye. Defendants filed a third-party claim against the manufacturer of Cortisporin, Burroughs Wellcome Company, alleging product liability in failing to adequately warn regarding use of Cortisporin. Burroughs, claiming that the warnings that were given were adequate, moved for summary disposition pursuant to MCR 2.116(C)(10). Defendants appeal as of right from an order granting summary disposition in favor of Burroughs. We affirm.

[190 MICHAPP 681]

I

Defendants contend that the trial court erred in taking from the jury the question whether Burroughs failed to adequately warn by not requiring doctors to conduct specific tests before prescribing the ointment. They also contend that the trial court erred in taking from the jury the question whether the alleged inadequate warning was a proximate cause of the injury. They further contend that the trial court erred in making findings of fact regarding whether an herpetic condition existed before Dr. Shurlow prescribed the ointment, and in concluding that it was the doctor's negligence, rather than the inadequate warning, that caused the injury.

II

MCR 2.116(C)(10) provides that summary disposition of all or part of a claim or defense may be granted when, except for the amount of damages, there is no genuine issue regarding any material fact, and the moving party is entitled to judgment as a matter of law. A motion for summary disposition under this subrule tests whether there is factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Dumas v. Auto Club Ins. Ass'n., 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988). The party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Pantely v. Garris, Garris & Garris, P.C., 180 Mich.App. 768, 773, 447 N.W.2d 864 (1989). The nonmovant may not rest upon mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genuine [190 MICHAPP 682] issue for trial. Metropolitan Life Ins. Co. v. Reist, 167 Mich.App. 112, 118, 421 N.W.2d 592 (1988). Giving the benefit of any reasonable doubt to the nonmovant, the court must determine whether a record might be developed that will leave open an issue upon which reasonable minds could differ. Dumas, supra. All inferences are to be drawn in favor of the nonmovant. Dagen v. Hastings Mutual Ins. Co., 166 Mich.App. 225, 229, 420 N.W.2d 111 (1987). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Peterfish v. Frantz, 168 Mich.App. 43, 48-49, 424 N.W.2d 25 (1988).

III

Defendants argue that the court erred in granting summary disposition because there was a genuine issue of material fact regarding whether the warnings provided by Burroughs were adequate. We disagree.

The manufacturer of a prescription drug has, at minimum, a legal duty to warn the medical profession of any risks inherent in its use that the manufacturer knows or should know exist. Smith v. E.R. Squibb & Sons, Inc., 405 Mich. 79, 88, 273 N.W.2d 476 (1979); Mowery v. Crittenton Hosp., 155 Mich.App. 711, 717, 400 N.W.2d 633 (1986).

A warning provided by Burroughs in the package insert that comes with the Cortisporin states that "Employment of steroid medication in the treatment of herpes simplex requires great caution." It further recommends that:

The initial prescription and renewal of the medication order beyond 8 grams should be made by a physician only after examination of the patient [190 MICHAPP 683] with the aid of magnification, such as slit lamp biomicroscopy and, where appropriate, fluorescein staining. [Emphasis added.]

Defendants admit that Dr. Shurlow knew of the warnings against using the Cortisporin when an herpetic infection is present. Dr. Shurlow further testified that he would not have prescribed it had he thought herpes was present, but would have referred David Nichols to an ophthalmologist. Dr. Shurlow was also aware that the reason Cortisporin was contraindicated, if herpes were present, was because it could possibly cause scarring, thus making the condition worse.

The trial court found that defendants' actual theory was that Burroughs' warning was inadequate, not because it failed to properly advise regarding risk of use, but because it did not adequately advise regarding proper diagnostic procedures.

Defendants' theory, in effect, is that Burroughs' warning failed to assist...