Kirk v. Michael Reese Hospital & Medical Center

JUSTICE SIMON, concurring in part and dissenting in part:

While I concur with the majority’s decision to dismiss the claim against the hospital, I dissent from the majority’s conclusion that the plaintiff fails to state a cause of action against the doctors for negligence and against the pharmaceutical companies for failure to give adequate warnings of the drugs’ dangerous propensities. The cause of action against the doctors presents neither the problems inherent in upholding the negligence count against the hospital nor the complex policy considerations involved in extending the boundaries of the tort of medical malpractice. (117 Ill. 2d at 529.) Rather, the doctors’ liability here is grounded in basic concepts of negligence, the same primary elements of negligence which law students study during their first year: duty, breach of duty, and the foreseeable injury that subsequently results. See, e.g., F. Harper, F. James & O. Gray, The Law of Torts sec. 18.2 (2d ed. 1986).

The majority accurately states that: “The question of duty in a negligence action should take into account the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.” (117 Ill. 2d at 526, citing Lance v. Senior (1967), 36 Ill. 2d 516, 518 ; Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 99 .) The doctors here have already acknowledged that they breached their duty to warn their patient of the possible adverse side effects of the prescribed drugs. Had they adequately warned their patient of the risks which the pharmaceutical company discussed in their insert, the patient would have been aware that:

“The use of this drug may impair the mental and physical abilities required for driving a car or operating heavy machinery. Physicians should be alert to the possibility that severe adverse reactions may occur which require immediate medical attention. Potentiation of the effects of alcohol may occur with the use of this drag.”

The doctors’ failure to issue this warning set into motion a series of events which culminated in an injury to a foreseeable class of persons — a passenger in the car of a patient who took the drug, drank, and drove.

It is immaterial that the passenger rather than the patient was injured as a result of the doctors’ failure to issue these warnings. A duty can exist to a third party when a defendant who has knowledge of the risk fails to take precautions, and a foreseeable injury of the same kind or class of harm which made the conduct dangerous occurs. Neering v. Illinois Central Railroad Co. (1943), 383 Ill. 366, 379 .

For instance, it is negligent for an adult to give a loaded shotgun to a child because a child does not have the maturity to understand the potential danger of pulling the trigger. As far as the adult’s liability is concerned, it makes little difference whether the child shoots himself or someone else whom the adult has no reason to know. The adult’s duty to refrain from this negligent act extends to all “kinds of hazards that were so foreseeably great as to make the act negligent.” F. Harper, F. James & O. Gray, The Law of Torts sec. 18.2, at 662 (2d ed. 1986).

As in the above example, the doctors here are responsible for the natural consequences that flow from their failure to issue proper warnings to their patient. These consequences would include the plaintiff’s injury since it fell within the foreseeable risks specifically mentioned in the warnings provided by the pharmaceutical company. The majority’s view that the .plaintiff here was too remote to fall within the scope of the doctors’ duty of care (117 Ill. 2d at 530) is overly narrow under any modern theory of negligence. The doctors were aware of the dangers of drinking while taking the prescribed medication. They were also aware that the drugs could impair the patient’s ability to drive. Because it was foreseeable that if the patient were unaware of the side effects of the drugs he might have a drink and drive, it was also foreseeable that such conduct could harm a passenger in his car. Since the plaintiff’s harm was a foreseeable consequence of the doctors’ failure to guard against this risk, the plaintiff’s injury fell within the scope of the doctors’ duty of due care.

The majority’s fear that if we were to uphold this cause of action we would extend a doctor’s duty of. care .to an indeterminable number of persons is misplaced. (117 Ill. 2d at 530) As stated above, the doctors’ potential liability extends only to the class of persons whose injury is so foreseeably great as to make the doctors’ conduct negligent. The majority’s comparison of the facts presented here to the situation in the famous case of Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339 , 162 N.E. 99 , is, therefore, inappropriate. The injury there was far more remote from the negligent conduct than the injury here. In Palsgraf the plaintiff sued a railroad company for injuries sustained when she was hit by several scales which fell off the station wall. The scales fell due to an explosion which occurred when a railroad guard pushed a passenger, who was carrying a box of fire crackers, aboard a crowded train. The force of the explosion knocked the scales off the wall, hitting the plaintiff. Justice Cardozo, writing for the New York Court of Appeals, concluded that the railroad company was not liable for the accident. He reasoned that:

“The conduct of the defendant’s guard, *** was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed ***. If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong *** with reference to some one else [the passenger carrying the package of fire crackers] ***.” F. Harper, F. James & O. Gray, The Law of Torts sec. 18.2, at 655 (2d ed. 1986), quoting Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 399, 341-44 , 162 N.E. 99, 99-100 .

In contrast, the risk to the plaintiff here was readily apparent — it was foreseeable that the patient could injure himself while driving should he fail to receive the appropriate warnings. It was as forseeable that while driving he might have a passenger who also would be injured because of the combination of the medicine and alcohol. Too, there was nothing seemingly innocent or harmless in the doctors’ failure to issue the warning. The doctors’ wrongs here were twofold; they not only failed to exercise due care to their patient by neglecting to issue the warnings, but also they disregarded the risk to the plaintiff or any other person unfortunate enough to be traveling with the patient or in his path. As one group of commentators have noted, the rule of Palsgraf is that:

“[T]he scope of duty is concerned with exactly the same factors as is the inquiry into whether conduct is unreasonably dangerous (i.e., negligent). Both seek to find what consequences of the challenged conduct should have been foreseen by the actor who engaged in it. Neither inquiry stops with what might be called the physical range of foreseeable harm, or with mere proximity in time or space. In both we look to see what natural forces and what human conduct should have appeared likely to come on the scene, and we weigh the dangerous consequences likely to flow from the challenged conduct in the light of these interventions.” F. Harper, F. James & O. Gray, The Law of Torts see. 18.2, at 656-57 (2d ed. 1986).

The plaintiff’s cause, of action in this case fits squarely within this rule. The injury was a natural consequence of the doctors’ failure to issue the warnings and, unlike the situation in Palsgraf, no extra burden is imposed on a doctor to take precautions or give adequate warnings because the plaintiff’s passenger rather than the plaintiff might be injured. In contrast to the situation in Palsgraf, where to avoid liability a guard would have had to open every single package before helping a person onto a train, all a doctor would be required to do is what the law already expects — to exercise due care with respect to his patient by informing him of the side effects of the prescribed drags.

The majority’s decision to dismiss the strict liability claim for failure to provide adequate warnings is also questionable. The court’s ruling effectively holds that the learned intermediary doctrine, which absolves a pharmaceutical manufacturer of liability for harmful side effects of the prescribed drug once health-care professionals are given adequate warnings, operates as an absolute defense to strict liability. My colleagues reach this conclusion without any consideration of the nature, adequacy or existence of the warnings the pharmaceutical company gave with respect to the medicine prescribed here.

The broad reach of this holding results from the majority’s error in viewing this question as though it came before this court on a ruling on a motion for summary judgment, rather than a motion to dismiss. Instead of examining the legal sufficiency of the complaint, the appropriate standard for reviewing a dismissal resulting from failure to state a cause of action (Katz v. Belmont National Bank (1986), 112 Ill. 2d 64, 67 ), the majority, in effect, accepts as true the pharmaceutical companies’ allegation that the warnings they provided were adequate. The majority states that the pharmaceutical companies would not:

“have reasonably foreseen that their drugs would be dispensed without warnings by the physicians ***. This sequence would be triggered by an element that we have determined that the pharmaceutical companies did not have to foresee under the circumstance shown here: that the drugs would be dispensed without the warnings that the two companies provided to the physicians.” (Emphasis added.) 117 Ill. 2d at 521.

The majority, in assuming the warnings were adequate, deprives the plaintiff of his right to present evidence to a finder of fact relative to the existence and sufficiency of the warnings. Our appellate court, in reversing the trial court’s dismissal of this claim, accurately emphasized that:

“[T]he sufficiency of the warnings is not resolved judicially *** but remain's a question to be resolved by the trier of fact ***. *** Here, since the counts against the drug manufacturers were dismissed because of a failure to state a cause of action [citation], the factual question as to the adequacy of warnings that allegedly were included as package inserts or that may have been given by the drug manufacturers to the medical profession is not before us. (Emphasis added.) 136 Ill. App. 3d 945 , 952 n.2.

By denying the plaintiff his right to present this proof, the majority has turned the learned intermediary doctrine into an absolute bar against liability. This determination effectively insulates drug manufacturers from their obligation to provide adequate warnings. Although the warnings given may have been adequate, we have no way at this point in the litigation of knowing whether this is so, and my view is that their adequacy needs to be tried out.