Petition for Writ of Certiorari — Kirk v. Michael Reese Hospital & Medical Center
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Iu The
JAN 4 1968
F. SPANIOL,
LERK
Supreme Court of the United
@ctober Term, 1987
JAMES D. KIRK,
Petitioner,
v8.
MICHAEL REESE HOSPITAL AND MEDICAL
CENTER, IRVING H. TRACER, M.D., HENRY
K. FINE, M.D., E.R. SQUIBB AND SONS,
INC., AND SMITHKLINE CLINICAL
LABORATORIES, INC.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS
ANDREW J. Horwitz, EsqQ.,
Counsel of Record for Petitioner
Marc A. PERPER, Esq.
180 North LaSalle Street, Suite 1025
Chicago, Illinois 60601
(312) 372-8822 / (815) 723-8822
Attorneys for the Petitioner,
JAMES D. KIRK.
Of Counsel:
Horwitz, Horwitz & AssociaTEs, LTD.
January 4, 1988
=
Pandick Technologies, Inc., Chicago © (312) 236-0200
:
i
QUESTIONS PRESENTED
I. WHETHER A LITIGANT IS DEPRIVED
OF CONSTITUTIONALLY PROTECTED
LIBERTY AND PROPERTY INTERESTS
WITHOUT DUE PROCESS OF LAW,
AND HIS RIGHT TO EQUAL PRO-
TECTION OF THE LAW, WHEN THE
STATE COURT OF LAST RESORT, WITH-
OUT JURISDICTION, DIRECTLY VIO-
LATES iTS OWN LEGALLY PROMUL-
GATED AND PUBLISHED RULES AND
STANDING ORDERS WITHOUT GIVING
THE AFFECTED PARTY AN OPPORTU-
NITY TO RESPOND.
Il. WHETHER A PLAINTIFF IN A CIVIL
CASE IS DEPRIVED OF HIS DUE PRO-
CESS RIGHT TO A FAIR TRIAL AND
FAIR ACCESS TO THE COURTS WHEN
THE STATE COURT OF LAST RESORT
ACCEPTS AS TRUE THE ALLEGATIONS
OF AN AFFIRMATIVE DEFENSE AND
DISMISSES PLAINTIFF’S COMPLAINT,
WITHOUT ALLOWING THE PLAINTIFF
AN OPPORTUNITY TO PRESENT EVI-
DENCE TO A TRIER OF FACT.
Il. WHETHER THE COURT VIOLATED THE
EQUAL PROTECTION-CLAUSE OF THE
FOURTEENTH AMENDMENT WHEN IT
IMMUNIZED PHYSICIANS FROM CIVIL
LIABILITY FOR FAILING TO PROVIDE A
SIMPLE WARNING TO PATIENTS NOT TO
DRINK ALCOHOL OR DRIVE AN AUTO-
MOBILE WHILE TAKING PRESCRIBED
MOOD-ALTERING DRUGS, WHERE THE
MINIMUM STANDARDS OF THE MED-
ICAL PROFESSION REQUIRE SUCH A
WARNING, AND NO OTHER CLASS OF
PROFESSIONALS OR LAY PERSONS HAS
EVER BEEN AFFORDED SUCH BLANKET
IMMUNITY.
ii
LIST OF PARTIES
The parties to this appeal and to the proceedings below
are the Petitioner, JAMES D. KIRK, and the Respondents,
MICHAEL REESE HOSPITAL AND MEDICAL CENTER;
IRVING H. TRACER, M.D.; HENRY K. FINE, M_.D.; E.R.
SQUIBB & SONS, INC.; AND SMITHKLINE CLINICAL
LABORATORIES, INC. Other parties who appeared below
but are not named as Respondents herein include DANIEL
McCARTHY, a Defendant at the trial court level but
not a party to the appeal; the Pharmaceutical Manufac-
turers Association, the Illinois Hospital Association, the
Metropolitan Chicago Health Care Council and the Illinois
Association of Defense Trial Counsel, all of whom filed
briefs amici curiae in the Supreme Court of Ilinois in sup-
port of the Respondents’ arguments; and the Illinois Trial
Lawyers Association, which filed a brief amicus curiae in
the Supreme Court of Ilinois in support of the Petitioner’s
argument.
QUESTIONS PRESENTED
LIST OF PARTIES
OPINIONS BELOW
JURISDICTION
iii
TABLE OF CONTENTS
CONSTITUTIONAL PROVISIONS AND
STATUTES
REASONS FOR GRANTING THE WRIT
I.
Petitioner was deprived of constitutionally pro-
tected liberty and property interests without
due process of law, and was denied equal pro-
tection of the law, when the Illinois Supreme
Court directly violated its own rules by recon-
sidering a case which had already been finally
adjudicated and for which the court had no juris-
diction for further proceedings, without giving
Petitioner an opportunity to respond to Respon-
dents’ Motion for Reconsideration, which was
itself in violation of state law .............
Petitioner was deprived of his due process right
to a fair trial and fair access to the courts
when the state supreme court accepted as true
the allegations of an affirmative defense and
dismissed Plaintiff’s Third Amended Complaint
without allowing Plaintiff an opportunity to pre-
sent evidence to a trier of fact in support of the
allegations of his complaint..........-..--- ‘
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STATEMENT OF THE CASE
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Page
Ill. No legitimate basis exists under the Equal
Protection Clause of the Fourteenth Amend-
ment for immunizing a physician from civil
liability to persons injured as a result of his
failure to warn patients not to drink alcohol
or operate motor vehicles while taking mood-
altering drugs prescribed by that physician, as
the minimum standards of the medical profes-
sion require such a warning, and no other class
of professionals or lay persons has ever been
entitled to such blanket immunity........... 17
COME SS oc es 20
ac con onc, Oe EN Me MS ORO ee la
Opinion of the Supreme Court of Ilinois....... 2a
Order of the Supreme Court of Ilinois dated
wo ee cca. ee 27a
Respondents’ Notices of Motion dated February
SG GN I RIO seks 2 SS, A i. 29a
Order of the Supreme Court of Illinois dated
IT a 33a
PEIN RE eeege, OF eRe ee 34a
Orders of the Circuit Court of Cook County,
County Department, Law Division (Gomberg, J.)
from which appeal was taken.............. 52a
Vv
TABLE OF AUTHORITIES
Cases: Page
Baltimore & O. R.R. Co. v. United States, 298 U.S.
ce es Bee wy aw Bk wa 14
In re Estate of Buchman, 123 Cal.App.2d 546, 267
fp 5 2: en ee or re 15
Collins v. Superior Court, 150 Cal.App.2d 354, 310
PA Be CE i on SS AT ORR ER ieee ce casses 14
Duval v. Goldin, 362 N.W.2d 274 (Mich.App. 1984) .. 18
Eisenstadt v. Baird, 405 U.S. 438 (1972) .......... 18
Freeze v. Lemmon, 210 N.W.2d 576 (lowa 1973). .... 18
Gooden v. Tips, 651 S.W.2d 364 (Tex.App. 1983)..... 18
Irwin v. Town of Ware, 457 N.E.2d 1292 (Mass.
SO on. BEES 5 ERR PERO GEASS C8 6 eo 18
Jenkins v. McKeithen, 395 U.S. 411 (1969)......... 14
Johnson v. Colley, 111 Ill.2d 468, 490 N.E.2d 685
(1986), cert. denied, _.U.S. __, 107 S.Ct. 113, 93
Bare an ae Paras eras ree 12
Kaiser v. Suburban Transp Sys., 398 P.2d 14 (Wash.
NE 5 ik oe PRED EERE D BEARER ROSS 8 8 18
Kirk v. Michael Reese Hosp. and Medical Center, 117
Ill.2d 507, 513 N.E.2d 387 (1987) ............ 5, 14
Kirk v. Michael Reese Hosp. and Medical Center, 136
Ill.App.3d 945, 483 N.E.2d 906 (1st Dist. 1985) .. 4, 16
LeStrange v. Berkeley, 210 Cal.App.2d 313, 26
Cal.Rptr. 550 (1962) .......-- 222s ee eeeeeees 15
vi
Cases: Page
Lipari v. United States, 497 F.Supp. 185 (D. Neb.
RO bain dé vc Kae 6M 0 a Peeks Ok 6a
Louisville & N. R.R. Co. v. Finn, 235 U.S. 601
CRO th nav gnc) cp cbecudas cen eamelecc ness
Logan v. Zimmerman Brush Co., 455 U.S. 422
| PERT E ek eed eee ed Pe) pee ete
People v. Barker, 59 T11.2d 201, 319 N.E.2d 810
Pr ero rye ae 3) Ses Ce ces
Rubin v. Kohn, 344 Il. 166, 176 N.E. 259 (1931) .. 9,10
San Antonio Independent School Dist. v. Rodriguez,
GE We ha ik inn eh Bh ns ic nn
Washington ex rel. Oregon R.R. & Nav. Co. v.
Fairchild, 224 U.S. 510 (1912) ................
Watkins v. United States, 489 F.2d 214 (5th Cir.
ROGGE .% 2 ¥.0 6a b Seeawae es e e Se.
Welke v. Kuzilla, 375 N.W. 405 (Mich.App. 1985)... .
18
No.
—__=——XK—KOe__E eee
Iu The
Supreme Court of the United States
@ctober Term, 1987
JAMES D. KIRK,
Petitioner,
v8.
MICHAEL REESE HOSPITAL AND MEDICAL
CENTER, IRVING H. TRACER, M.D., HENRY
K. FINE, M.D., E.R. SQUIBB AND SONS,
INC., AND SMITHELINE CLINICAL
LABORATORIES, INC.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS
The Petitioner, JAMES D. KIRK, respectfully prays
that a Writ of Certiorari issue to review the judgment and
opinion of the Supreme Court of Illinois, entered in the
above-entitled proceeding on October 5, 1987.
OPINIONS BELOW
The opinion of the Supreme Court of Illinois is reported
at 117 Il.2d 507, 513 N.E.2d 387, and is reprinted in the
appendix hereto, p.2a, infra.
2
The opinion of the Appellate Court of Mllinois, First
Judicial District, is reported at 136 DlL.App.3d 945, 483
N.E.2d 906, and is reprinted in the appendix hereto, p.34a,
infra.
The pertinent orders of the Circuit Court of Cook
County, Illinois, County Department, Law Division
(Gomberg, J.) are unpublished, and are reprinted in the
appendix hereto, p.52a, infra.
JURISDICTION
The judgment of the Supreme Court of Illinois was
entered on July 13, 1987, reversing the decision of the
Appellate Court of Illinois entered on August 28, 1985,
which had in turn reversed the trial court’s dismissal of
Plaintiff’s Third Amended Complaint. On October 5, 1987,
on denial of rehearing, the Supreme Court of Illinois mod-
ified its opinion of July 13, 1987, with no substantive
changes. The jurisdiction of this Court is invoked under
28 U.S.C. Section 1257(3).
CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED
The Fourteenth Amendment to the Constitution of the
United States provides, in pertinent part, as follows:
No State wy Rogers or enforce any law oo
shall abridge privileges or immunities of cit-
izens of the United States; nor shall any State
deprive any person of life, liberty, or property
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the
laws.
U.S. CONST. amend. XIV, Section 1.
3
STATEMENT OF THE CASE
~ The Plaintiff-Petitioner, JAMES D. KIRK, filed a six-
count complaint for personal injuries, alleging that one
DANIEL McCARTHY (“McCarthy”), a Defendant below,
received psychiatric treatment at MICHAEL REESE
HOSPITAL AND MEDICAL CENTER (“Reese”) from
Defendants IRVING R. TRACER, MLD. (“Tracer”) and
HENRY K. FINE, M.D. (“Fine”) on August 1, 1978. The
doctors ordered that McCarthy be administered two pre-
scription drugs: Prolixin Decanoate, manufactured by
Defendant E.R. SQUIBB & SONS, INC. (“Squibb”), and
Thorazine, manufactured by Defendant SMITHKLINE
CLINICAL LABORATORIES, INC. (“Smithkline”). Hospi-
tal personnel injected McCarthy with Prolixin Decanoate
and gave him Thorazine for oral consumption.
On the same day, McCarthy was discharged from the
Defendant hospital. He then consumed an alcoholic bev-
erage and drove his automobile with Plaintiff as a passen-
ger. The drugs diminished McCarthy’s mental and physi-
cal abilities, causing him to lose control of his car. As a
result, the automobile struck a tree, causing severe and
permanent injuries to the Plaintiff.
Counts One through Three of Plaintiff’s Third
Amended Complaint allege medical negligence against
Reese, Tracer and Fine, in that they failed to warn
McCarthy prior to his discharge from the hospital that
the drugs would impair his physical and mental abilities,
although the Defendants knew or should have known of
the adverse effects of the drugs.
Counts Four and Five of the complaint, predicated on
strict products liability, allege that the prescription drugs
were unreasonably dangerous in that Defendants Squibb
and Smithkline, as manufacturers, and Defendant Reese,
as a dispenser of the medications, failed to provide ade-
quate warnings to the health care providers relative to the
adverse effects of the drugs. Count Six of the complaint is
not involved in the present appeal.
a
In a series of unpublished orders, the Circuit Court of
Cook County, Illinois, County Department, Law Division,
Hon. Myron T. Gomberg, J., dismissed Counts One through
Five of the complaint for failure to state a claim, hold-
ing as a matter of law that the Defendants owed no duty
to the Plaintiff (App. 52a-55a). The Appellate Court of
Illinois, Hon. Dom Rizzi, J., reversed and remanded. Kirk
v. Michael Reese Hosp. and Medical Center, 136 011.App.3d
945, 483 N.E.2d 906 (1st Dist. 1985). The appellate court
held that the Defendant drug manufacturers had a duty
to adequately warn health care providers of the adverse
effects of the drugs, and that the Defendant health care
providers in turn had a duty to adequately warn their
patient that the drugs would impair his mental and phys-
ical abilities. Those duties implicitly protect members of
the public who would foreseeably be injured by a failure to
warn (App. 34a).
Each of the five Defendants filed separate Petitions
for Leave to Appeal to the Supreme Court of Illinois. On
February 5, 1986, in five separate orders, the supreme
court denied leave to appeal on each of the Defendants’
several petitions (App. 33a).
On February 24, 1986, in contravention of a standing
supreme court order which had been in effect for over six
years, the Defendants served Plaintiff’s counsel with a doc-
ument styled, “Motion for Leave to File Motion for Recon-
sideration and Motion for Reconsideration.” Rather than
filing said document with the clerk of court in Springfield,
Illinois, the Defendants instead sent copies of their pur-
ported “motion” directly to each of the seven Justices of the
supreme court at their respective local addresses across the
state (App. 29a-32a).
On March 18, 1986, the supreme court entered an
order as follows: (1) allowing Defendants’ motion for leave
to file a motion for reconsideration; (2) allowing Defen-
dants’ motion for reconsideration; and (3) allowing Defen-
Ce ete thas ys ios
5
dants’ petitions for leave to appeal, which had previously
been denied (App.27a-28a). The court’s action violated the
express terms of the court’s own standing order entered
November 15, 1979. That standing order barred the filing
of motions for reconsideration of orders denying leave to
appeal. The standing order further directed the clerk of
the supreme court not to accept such motions and to return
them unfiled to the tendering parties.
On July 13, 1987, with one justice dissenting and
two not participating, the Supreme Court of [linois, Hon.
Daniel P. Ward, J., reversed the decision of the appellate
court and reinstated the trial court’s dismissal of Counts
One through Five of the complaint. On October 5, 1987,
on denial of Plaintiff’s petition for rehearing, the court’s
opinion was modified without substantive changes in the
majority cpinion. Kirk v. Michael Reese Hosp. and Medical
Center, 117 I1l.2d 507, 513 N.E.2d 387 (1987) (App. 2a).
The court’s majority opinion made no reference to the
unusual procedural history of the case in the supreme
court. Specifically, the opinion made no mention of the
fact that Defendants’ petitions for leave to appeal had ini-
tially been denied. The opinion also failed to mention that
the Defendants had filed a purported “motion for leave to
file motion for reconsideration and motion for reconsider-
ation.” The opinion also failed to mention that the pur-
ported “motion” was in violation of the express terms of
the November 15, 1979 standing order. The opinion also
failed to mention that the Defendants mailed copies of their
purported “motion” directly to each of the seven justices
at their local addresses across the state, rather than filing
same with the court clerk as required by law. See Illinois
Supreme Court Rule 361, Ill.Rev.Stat. Ch. 110A, Par. 361.
The majority opinion also failed to mention that the
court had simultaneously granted Defendants’ motion for
leave to file a motion for reconsideration, their motion for
reconsideration, and their petitions for leave to appeal,
6
without allowing Plaintiff an opportunity to respond to
Defendants’ motion for reconsideration. The opinion also
failed to mention that by hearing and ultimately granting
such motions, the court had violated the express terms of
its own standing order originally entered on November 15,
1979. The majority’s sole reference to the procedural pos-
ture of the case was an oblique recital that the Defendants
“filed petitions for leave to appeal in this court under our
Rule 315(a) [103 I1l.2d R. 315(a)); we allowed the petitions
and consolidated the five appeals.” 513 N.E.2d at 390.
In its decision affirming the trial court’s dismissal
of Plaintiff’s complaint, the supreme court accepted as
true the allegations of an affirmative defense claimed by
the Defendant pharmaceutical manufacturers based on
the “learned intermediary” doctrine. That doctrine holds
that a drug manufacturer who adequately warns a health
care provider of the adverse effects of its product will be
absolved of liability to persons injured by the health care
provider’s failure to warn his patient. In the present case,
the supreme court effectively held that the mere assertion
of the learned intermediary defense by a pharmaceutical
manufacturer is sufficient to mandate dismissal of a com-
plaint alleging that a pharmaceutical manufacturer failed
to adequately warn of the adverse effects of its drugs, with-
out regard to the existence of factual questions relative to
whether such warnings were actually given, or if so, the
adequacy thereof.
The supreme court further held that public policy
requires special protection for physicians and hospitals
whose legal misconduct causes injury to foreseeable vic-
tims. Such extraordinary protection applies to health care
providers even where their wrongful acts violate the very
standards applicable to members of the medical profession.
According to the supreme court, a procedural change in
medical negligence law enacted by the Illinois General
Assembly in 1986 was sufficient to retroactively change
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the substantive law applicable to persons injured by wrong-
ful ‘acts of doctors and hospitals in 1978. Because the
state legislature has recently imposed certain procedural
requirements on persons bringing new medical malprac-
tice lawsuits in the future, the supreme court held that
for reasons of public policy, doctors should no longer be
legally required to warn patients not to consume alcohol or
drive a car while under the influence of mood-altering pre-
scription drugs. According to the supreme court, a physi-
cian who fails to convey such a simple warning should be
immune from liability to persons injured as a result of a
patient’s consumption of alcohol or operation of a motor
vehicle while using such prescribed medication.
8
REASONS FOR GRANTING THE WRIT
I, PETITIONER WAS DEPRIVED OF CON-
STITUTIONALLY PROTECTED LIB-
ERTY AND PROPERTY INTERESTS
WITHOUT DUE PROCESS OF LAW,
AND WAS DENIED EQUAL PRO-
TECTION OF THE LAW, WHEN
THE ILLINOIS SUPREME COURT
DIRECTLY VIOLATED ITS OWN
RULES BY RECONSIDERING A
CASE WHICH HAD ALREADY BEEN
FINALLY ADJUDICATED AND FOR
WHICH THE COURT HAD NO JURIS-
DICTION FOR FURTHER PROCEED.-
INGS, WITHOUT GIVING PETITIONER
AN OPPORTUNITY TO RESPOND TO
RESPONDENTS’ MOTION FOR RECON-
SIDERATION, WHICH WAS ITSELF IN
VIOLATION OF STATE LAW.
A standing order of the Illinois Supreme Court, in force
since November 15, 1979, provides in pertinent part as
follows:
The rules of this court make no provision for filing
of a motion for reconsideration of an order of this
court denying a petition for leave to appeal or
petition for rehearing. The Clerk of the Supreme
Court is directed not to accept or file such motions
and is further directed to return them to the ten-
dering party or attorney.
The obvious import of this rule is that no petition for recon-
sideration of an order denying a petition for leave to appeal
should be presented to the state supreme court.
It might be argued that a technical difference some-
how exists between a “motion for leave to file” a petition
for reconsideration and the petition itself. Nevertheless, in
all practical respects a motion for “leave to file” the peti-
tion is, in reality, the same as the petition itself, whether
the motion effectively constitutes the petition or consists
merely of a sentence attached to the petition. In either
event, the two are identical.
PR ees rane eed be es
9
That both the intent and the effect of the two pleadings
are identical is evidenced in the instant case, in which the
state supreme court simultaneously granted Defendants’
motion “for leave to file a petition for reconsideration,”
their “petition for reconsideration,” and their petition for
leave to appeal, without affording Plaintiff an opportunity
to respond to the petition for reconsideration after its filing
had been allowed. It is also curious that the supreme
court’s published opinion on the merits omits any reference
to the Byzantine procedural history of this case. If one
were to read the court’s published opinion without having
independent knowledge of the manner in which the court
agreed to hear the case in the first instance, one would be
unaware that the court initially denied leave to appeal and
later reversed itself in violation of its own rules. Plaintiff
submits that the court’s actions deprived James Kirk of
his constitutionally protected liberty and property interests
without due process of law, and denied him equal protec-
tion of the law, in violation of the Fourteenth Amendment
to the United States Constitution.
The Dlinois Supreme Court has promulgated and pub-
lished rules and orders governing appellate procedure.
These rules provide notice to litigants and members of the
bar regarding the manner in-which appeals are perfected.
For example, Illinois Supreme Court Rule 367 provides for
a rehearing of an appeal only after a reviewing court.issues
an opinion. I1]l.Rev.Stat., Ch. 110A, Par. 367. The Rule
“does not allow petitions for rehearing to be filed from deci-
sions denying petitions for leave to appeal.” Smith-Hurd
Ann. Stat., Ch. 110A, Par. 367, Historical and Practice
Notes at 309. Similarly, Rule-361, which governs motion
practice in the reviewing courts, was not intended to per-
mit motions not otherwise recognized by law. People v.
Barker, 59 111.2d 201, 205-206, 319 N.E.2d 810, 812 (1974).
Furthermore, denial of a petition for leave to appeal is a
final adjudication of the case, leaving no jurisdiction for
further proceedings. See Rubin v. Kohn, 344 Ill. 166, 172,
176 N.E. 259 (1931).
10
This case involves fundamental rights arising under
the Constitution of the United States. The legal principal
underlying the due process and equal protection violations
is whether a branch of government, in the case the state
supreme court, should follow its own rules or may arbi-
trarily create or destroy claims. This Court addressed the
issue in a somewhat different context in United States v.
Nixon, 418 U.S. 683 (1974). In Nixon, the President of the
United States disobeyed a federal regulation allowing the
Watergate special prosecutor to contest a claim of execu-
tive privilege. Pointing out that the regulation in question
had the force of law, this Court held that
[aJs long as this regulation remains in force the
Executive Branch is bound by it, and indeed the
United States as the sovereign composed of three
branches of government is bound to respect and to
enforce it.
Id., at 696. In other words, the branches of government
are “bound to respect and to enforce” their own rules.
Similarly, in Logan v. Zimmerman Brush Co., 455
U.S. 422 (1982), the Illinois Supreme Court had refused to
hear a case arising under the former Illinois Fair Employ-
ment Practices Act because it was not timely processed by a
state agency. This Court held that the claimant had a con-
stitutionally protected liberty and property interest in his -
state-created claim, and that he was unlawfully deprived
of that protected interest without due process of law by the
court’s refusal to hear the case.
The instant case is analogous to both Nixon and Logan.
Here, the state supreme court failed to follow and enforce
its own rules. Plaintiff had a protected interest in seeing
that the state court system follow its own rules when adju-
dicating his case. See Nixon at 696. Plaintiff likewise had
a state-created property interest in the final judgment of
the intermediate-level appellate court, for which leave to
appeal had been denied by the state supreme court. See
Logan, at 430; Cf. Rubin v. Kohn, 344 Ill. at 172. At a bare
gis \ neeit ON
11
minimum, Plaintiff should have been afforded the opportu-
nity to respond in writing to Defendants’ motion for recon-
sideration, once the supreme court granted “leave to file”
that motion. Instead, the court granted “leave to file” the
motion and simultaneously granted the motion itself. Once
a person establishes a constitutionally protected interest,
the Fourteenth Amendment defines the minimum proce-
dural requirements which protect that interest. Logan, at
430. The Illinois Supreme Court therefore deprived James
Kirk of his constitutionally protected liberty and property
interests, and that deprivation was without due process of
law.
Furthermore, the supreme court by its action created
two classes of lawyers and litigants. The first class con-
sists of lawyers who read, understand and follow the pub-
lished opinions, rules and orders of court, and their clients.
The second class consists of those lawyers who do not read,
understand or follow published opinions, rules and orders
of court, or who may circumvent the rules by utilizing
occult procedural maneuvers known only to a few select
“in” members of the bar, and their clients. Such a classifi-
cation is constitutionally impermissible, as it violates the
Equal Protection Clause of the Fourteenth Amendment to
the Constitution of the United States.
Like other branches of government, courts should be
expected to follow their own rules. A failure by the high-
est appellate tribunal of a state to follow its own rules
can only erode public confidence in the judicial system and
encourage sloppy, incompetent practice by lawyers. The
Illinois judiciary and bar are now struggling to maintain
public credibility in the face of the well-publicized Opera-
tion Greylord investigation. It is therefore vital, now more
than ever before, that the judicial branch of state govern-
ment take care to respect and enforce its own rules.
12
The Illinois Supreme Court has now developed a pat-
tern of reconsidering final denials of leave to appeal, in
violation of its own rules. In Johnson v. Colley, 111 011.2d
468, 490 N.E.2d 685 (1986), cert denied, _._U.S.__., 107
S.Ct. 113, 93 L.Ed.2d 60 (1986), the supreme court violated
its own standing order by granting a motion for reconsid-
eration of its denial of a petition for leave to appeal. In
Johnson, the court examined its own action and found that
it did not act unconstitutionally in granting a motion for
reconsideration which violated the court’s own rules, and
reversing the appellate court after having first denied leave
to appeal. Thus, the case at bar is at least the second in a
series of cases in which the court has effectively abrogated
its own legally promulgated and published rules of proce-
dure without notice to members of the bar. If the state
supreme court in fact wishes to change the principal that
denials of leave to appeal in Dlinois constitute final judg-
ments, and instead establish a new procedure whereby the
court can reconsider a prior denial of a petition for leave to
appeal, the court should change its own rules and vacate its
standing order on the subject so as to provide notice to the
bench and bar. Otherwise, each time the court reconsiders
prior denials of petitions for leave to appeal, it unconstitu-
tionally deprives the litigants who prevailed below of state-
created liberty and property rights, and denies equal pro-
tection of the law to that class of attorneys and litigants
who choose to follow the legally established supreme court
rules.
13
Il. PETITIONER WAS DEPRIVED OF HIS
- DUE PROCESS RIGHT TO A FAIR
TRIAL AND FAIR ACCESS TO THE
COURTS WHEN THE STATE SUPREME
COURT ACCEPTED AS TRUE THE
ALLEGATIONS OF AN AFFIRMA-
TIVE DEFENSE AND DISMISSED
PLAINTIFF’S THIRD AMENDED COM-
PLAINT WITHOUT ALLOWING PLAIN-
TIFF AN OPPORTUNITY TO PRESENT
EVIDENCE TO A TRIER OF FACT IN
SUPPORT OF THE ALLEGATIONS OF
HIS COMPLAINT.
In spite of the fact that the instant case came before
the state supreme court on a motion to dismiss a com-
plaint for failure to state a claim, rather than on a motion
for summary judgment, the court effectively accepted as
true the allegations of Defendants Squibb and Smithkline
regarding the existence and adequacy of certain warnings
purportedly conveyed by them to the Defendant health
care providers. Those pharmaceutical Defendants had
raised the “learned intermediary” doctrine as an affirma-
tive defense of sorts. That doctrine absolves drug manu-
facturers of civil liability if they adequately warn health
care providers of the side effects of prescription drugs.
However, the state supreme court relied only on a bare
allegation of a “learned intermediary” defense contained in
a motion to dismiss to completely absolve the drug manu-
facturer Defendants, with no opportunity for the trier of
fact to determine whether warnings were in fact given,
and if so, the adequacy thereof. According to the court,
the pharmaceutical Defendants should 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 a have determined that the
pharmaceutical companies did not have to fore-
see under the circumstances shown here: that the
drugs would be dispensed without the warnings that
the two companies provided to the physicians.
14
Kirk v. Michael Reese Hosp. and Medical Center, 117 111.2d
507, 513 N.E.2d 387, 394 (1987) (emphasis supplied). The
court’s analysis would be correct only if Smithkline and
Squibb had shown as a matter of law that they gave ade-
quate warnings to the “learned intermediaries,” i.e., the
doctors, in the first instance. Only then could the “learned
intermediary” doctrine absolve the drug companies of lia-
bility to persons injured by a physician’s failure to warn.
Yet nothing in the Record demonstrates that any such
warnings were even given in the case at bar, let alone
whether the warnings were adequate as a matter of law.
Nor was Plaintiff given an opportunity to dispute that fact.
Plaintiff submits that the liberty interest in access
to the courts, protected by the Due Process Clause of the
Fourteenth Amendment to the Constitution of the United
States, includes the right to have a trier of fact, whether
judge or jury, determine disputed questions of fact in a civil
case. No court has the right to accept as true the bare alle-
gations of an affirmative defense and dismiss a Plaintiff’s
complaint without affording him the opportunity to present
evidence in support of his claim.
The right to present evidence is essential to the fair
hearing required by the due process clause. Jenkens v.
McKeithen, 395 U.S. 411 (1969). Due process is absent
if a party is deprived of liberty or property without evi-
dence having been presented in accordance with estab-
lished rules. Collins v. Superior Court, 150 Cal.App.2d
354, 310 P.2d 103 (1957). Mere fiat may not take the
place of factfinding in the determination of issues involv-
ing liberty or property. See Manley v. Georgia, 279 U.S.
1 (1929). The right under the due process clause to a full
hearing includes the right of the litigants to introduce evi-
dence and have findings based thereon. Baltimore & O.
R.R. Co. v. United States, 298 U.S. 349 (1936); Louisville
& N. R.R. Co. v. Finn, 235 U.S. 601 (1915); Washington
ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U.S. 510
15
(1912). Where disputed factual questions exist, due process
implies the hearing of evidence from both sides in open
court, a comparison of the merits of the evidence, a con-
clusion from the evidence as to where the truth lies, the
application of law to fact, and the rendition of judgment
accordingly. Cf., in re Estate of Buchman, 123 Cal.App.2d
546, 267 P.2d 73 (1954). The “fair trial” that is essential
to due process requires that the finder of fact must know,
consider, and appraise the evidence. LeStrange v. Berkeley,
210 Cal.App.2d 313, 26 Cal.Rptr. 550 (1962).
In the present case, the supreme court’s opinion does
acknowledge that in ruling on a motion to dismiss for fail-
ure to state a claim, all well-pleaded facts must be taken
as true according to Illinois law. 513 N.E.2d at 390. No
serious doubt ever existed that Plaintiff’s complaint suffi-
ciently alleged a failure by Squibb and Smithkline to ade-
quately warn the physicians relative to the tendency of
their products to impair a patient’s physical and mental
capacities. Plaintiff has a right to prove before a trier of
fact that the warnings given by Squibb and Smithkline, if
any, were inadequate. The unfairness of depriving Plain-
tiff of that right was recognized by Justice Simon’s sting-
ing dissent in the case sub judice, when he wrote that
“(t]he majority, in assuming the warnings were adequate,
deprives the plaintiff of his right to present evidence to
a trier of fact relative to the existence and sufficiency of
the warnings.” 513 N.E.2d at 402 (Simon, J., dissenting).
Similarly, the Dlinois Appellate Court correctly noted that
the sufficiency of the warnings is not resolved
judicially ..., but remains a question to be resolved
by the trier of the fact...Here, since the counts
against the drug manufacturers were dismissed
because of a failure to state a cause of action
(Ill.Rev.Stat.1983, Ch. 110, Par. 2-615), the fac-
tual question as to the adequacy of warnings that
allegedly were included as package inserts or that
may have been given by the medical profession is
not before us.
|
16
Kirk v. Michael Reese Hosp., 136 [ll.App.3d 945, 483
N.E.2d 906, 911, n.2 (1st Dist. 1985) (emphasis supplied).
By accepting the Defendants’ unsubstantiated allega-
tions as true, the state supreme court effectively decided
a disputed factual issue on the basis of unauthenticated
documents and baseless arguments of counsel, without giv-
ing Plaintiff the opportunity to respond under some recog-
nized rule of procedure. No affidavits were ever filed by the
Defendants. No opportunity was ever provided to Plaintiff
to file counteraffidavits. Even so, it has never been shown
that Squibb or Smithkline ever gave any warnings at all
to the doctors, let alone whether such warnings were ade-
quate to apprise the medical profession of the side effects of
the Defendants’ drugs. Indeed, Dr. Tracer, the physician
who treated Daniel McCarthy, himself admitted at page
23 of his Appellate Court brief that he was unaware that
the drugs would diminish his patient’s mental and physi-
cal capacities. Tracer’s admission constitutes evidence that
the warnings given by the pharmaceutical manufacturers,
if they were given at all, were inadequate to apprise Tracer,
the “learned intermediary,” of the dangerous propensities
of the drugs. Yet the court barred Plaintiff from present-
ing such evidence to a trier of fact. In short, the court’s
action in dismissing Plaintiff’s complaint against the drug
manufacturers without allowing a judge or jury to assess
whether adequate warnings were given deprives Plaintiff
of his liberty interest under the Due Process Clause in hav-
ing a fair trial and fair access to the courts of this state.
17
Ill. NO LEGITIMATE’ BASIS’ EXISTS
* UNDER THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH
AMENDMENT FOR IMMUNIZING A
PHYSICIAN FROM CIVIL LIABILITY
TO PERSONS INJURED AS A RESULT
OF HIS FAILURE TO WARN PATIENTS
NOT TO DRINK ALCOHOL OR OPER-
ATE MOTOR VEHICLES WHILE TAK-
ING MOOD-ALTERING DRUGS PRE-
SCRIBED BY THAT PHYSICIAN, AS
THE MINIMUM STANDARDS OF THE
MEDICAL PROFESSION REQUIRE
SUCH A WARNING, AND NO OTHER
CLASS OF PROFESSIONALS OR LAY
PERSONS HAS EVER BEEN ENTITLED
TO SUCH BLANKET IMMUNITY.
The court’s ruling effectively insulates physicians from
civil liability for failing to comply with the bare minimum
standard for practicing medicine. A doctor who prescribes
psychotropic drugs now has no legal obligation to convey a
thirty-second warning to the patient not to operate a motor
vehicle or consume alcohol while under the influence of
mood-altering medication. The doctor has virtual license
to turn his patient into a human time bomb whose victims
have no legal recourse in the civil justice system. Certainly
a patient bears no liability to persons injured when he
drives a car while taking such prescribed drugs, as he has
not been made aware of any side-effects. Yet the supreme
court saw fit to create a privileged class consisting only of
members of the medical profession.
According to the logic of the court’s opinion, physicians
now have complete freedom to drug patients and turn them
loose upon an unsuspecting society, bearing no cost of the
damage which is almost certain to result. The creation
of such a privileged class bars innocent victims of medi-
cal negligence from obtaining redress in the civil courts of
this land, thereby depriving such persons of their funda-
mental right to fair access to the courts. Under the Equal
18
Protection Clause, classifications which impinge on funda-
mental freedoms must be not merely rationally related to a
valid public purpose, but must be necessary to the achieve-
ment of a compelling state interest. San Antonio Indepen-
dent School Dist. v. Rodriguez, 411 U.S. 1 (1973); Hisen-
stadt v. Baird, 405 U.S. 438 (1972). In the present case, no
such compelling state interest is present. Moreover, even if
this Court finds that no fundamental right is implicated by
the extension of immunity to doctors who injure innocent
persons by their failure to warn patients of the side effects
of prescribed drugs, Petitioner nevertheless submits that
the creation of such a privileged class in our legal system
cannot be justified even by an articulable rational basis.
The supreme court’s ruling was not based on any inter-
pretation of the common law of torts; indeed, the court
rejected the unanimous view held by every court in the
land which has considered the issue. Published opinions
from four states and two federal courts have all held that
a doctor who fails to warn his patient of the mood-altering
side effects of prescribed medication will be liable in tort
to persons injured as a result of his failure to warn. See
Freeze v. Lemmon, 210 N.W.2d 576 (Iowa 1973); Kaiser v.
Suburban Transp. Sys., 398 P.2d 14 (Wash. 1965); Welke
v. Kuzilla, 375 N.W.2d 405 (Mich.App. 1985); Duval v.
Goldin, 362 N.W.2d 274 (Mich.App. 1984); Gooden v. Tips,
651 S.W.2d 364 (Tex.App. 1983); Watkins v. United States,
489 F.2d 214 (5th Cir. 1979); Lipari v. United States, 497
F.Supp. 185 (D. Neb. 1980); compare Irwin v. Town of
Ware, 467 N.E.2d 1292 (Mass. 1984). By this discussion,
Plaintiff does not intend to propose a “constitutionaliza-
tion” of the common law of torts; rather, Plaintiff wishes
only to illustrate that the supreme court’s decision in the
instant case is beyond the bounds of reason. The sole basis
stated by the court for its decision to alleviate doctors of
the duty to warn patients about prescribed medication is
that the Illinois General Assembly established certain new
procedures for filing future medical malpractice lawsuits
OL a ee =
19
beginning in 1986. From these procedural changes, the
supreme court inferred a public policy to retroactively insu-
late doctors from civil liability. The court’s decision fails
to enunciate a compelling state interest sufficient to jus-
tify such an intrusion upon the fundamental right of the
citizenry to fair access to the civil justice system.
Moreover, even if the right of the people to fair access
to the courts is not of a “fundamenta!” nature, as that term
has been defined under the Equal Protection Clause, Plain-
tiff nevertheless submits that the alleged “public policy”
articulated by the court and retroactively applied to this
case is vastly insufficient even to overcome the threshold
of “mere rationality” necessary for any government clas-
sification to withstand constitutional scrutiny under the
Equal Protection Clause.
20
Conclusion
For all the foregoing reasons, Petitioner respectfully
prays that this Honorable Court issue a Writ of Certiorari
to the Supreme Court of Illinois.
Respectfully submitted,
ANDREW J. Horwitz, Esq.,
Counsel of Record for Petitioner
Marc A. PERPER, Esq.
Counsel for Petitioner
Horwitz, Horwitz & Associates, LTp.
180 North LaSalle Street, Suite 1025
Chicago, Illinois 60601
(312) 372-8822 / (815) 723-8822
January 4, 1988
la
ILLINOIS SUPREME COURT
JULEANN HORNYAK, CLERK
SUPREME COURT BUILDING
SPRINGFIELD, ILL. 62706
(217) 782-2035
October 5, 1987
Mr. Dario Garibaldi
Horwitz and Associates
180 N. LaSalle St.
Chicago, IL 60601
Nos. 62700 — James D. Kirk, appellee, v. Michael Reese
62701 Hospital and Medical Center, et al., etc.,
62702 appellants. Appeal, Appellate Court, First
62703 _ District.
62704 .
Cons.
The Supreme Court today DENIED the petition for rehear-
ing in the above entitled cause.
Opinion modified on denial of rehearing.
The mandate of this Court will issue to the appropriate
Appellate Court and/or Circuit Court or other agency on
October 15, 1987.
2a
OPINION MODIFIED ON DENIAL OF REHEARING
OCTOBER 5, 1987.
ORIGINAL OPINION FILED July 13, 1987.
Docket Nos. 62700, 62701, 62702, 62703 & 62704 cons.—
Agenda 6—January 1987.
JAMES D. KIRK, Appellee, v. MICHAEL REESE HOSPI-
TAL AND MEDICAL CENTER et al., Appellants.
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 Il. 2d R. 315(a)); we allowed
the petitions and consolidated the five appeals for review.
Because this appeal is before the court on the defen-
dants’ motion to dismiss, all well-pleaded facts will be
regarded as true. (Katz v. Belmont National Bank (1986),
112 Ill. 2d 64, 67; Mein v. Masonite Corp. (1985), 109
Til. 2d 1, 7.) 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 psychi-
atric patient at Michael Reese Hospital and Medical Cen-
ter (hereafter Michael Reese), where he was treated by
Dr. Irving H. Tracer and Dr. Henry K. Fine. The plain-
tiff alleges that Dr. Tracer was rendering medical treat-
ment 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
3a
treating McCarthy. The drug Thorazine, which is man-
ufactured by the defendant SmithKline Beckman Corp.
(hereafter SmithKline), had been prescribed and McCarthy
also had been given Prolixin Decanoate, which is manufac-
tured 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 I
and III seek recovery from Drs. Tracer and Fine, respec-
tively, 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 abili-
ties 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.
4a
The appellate court, with one justice dissenting,
reversed and remanded the dismissed counts for trial. (136
ll. App. 3d 945.) The appellate court, considering whether
the defendants owed a duty to the plaintiff as but a sin-
gle issue, held that the doctors, hospital, and drug manu-
facturers 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).
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 stat-
ed, the five defendants filed petitions for leave to appeal;
their petitions were initially denied, but upon reconsidera-
tion, they were allowed and consolidated for review. Briefs
amici curiae have been filed by five organizations. The
Illinois Trial Lawyers Associations, as amicus, supports
the plaintiff’s arguments that the appellate court decision
should be affirmed. Another amicus, the Pharmaceuti-
cal 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 Dlinois
Association of Defense Trial Counsel generally argues to
reverse the appellate court’s decision and specifically sup-
ports 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.) 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 Tll. 2d 13, 17), but that
does not lessen the obligation of the plaintiff to set out
5a
facts necessary for recovery under the theory asserted in
the complaint. (Teter v. Clemens (1986), 112 Ill. 2d 252,
256-57.) 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), would subject a
seller or manufacturer of a product to liability if the prod-
uct is sold “in a defective condition unreasonably danger-
ous” 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; Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26,
29; 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 “unavoid-
ably 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.
The plaintiff asserts that, while the class of persons to
whom the warning is required to be given may be very lim-
ited, 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; (applying Texas
law); Hatfield v. Sandoz-Wander, Inc. (1984), 124 ll. App.
3d 780 (applying Indiana law); Eldridge v. Eli Lilly & Co.
(1985), 138 Ill. App. 3d 124), but this court had not directly
considered the issue. The rule, as adopted in numerous
. 6a
jurisdictions, provides that manufacturers of prescription
drugs have a duty to warn prescribing physicians of the
drugs’ known dangerous propensities, and the physicians,
in turn, using their medical judgment, have a duty to con-
vey the warnings to their patients (Hatfield v. Sandoz-
Wander, Inc. (1984), 124 Ill. App. 3d 780, 788; Mahr v.
G.D. Searle & Co. (1979), 72 Tl. App. 3d 540, 561; Hoffman
v. Sterling Drug, Inc. (8rd Cir. 1973), 485 F.2d 132, 142;
Crocker v. Winthrop Laboratories (Tex. 1974), 514, S.W.2d
429; Stone v. Smith, Kline & French Laboratories (11th Cir.
1984), 731 F.2d 1575, 1579; Stevens v. Parke, Davis & Co.
(1973), 9 Cal. 3d 51, 507 P.2d 653, 107 Cal. Rptr. 45; Ter-
hune v. A.H. Robins Co. (1978), 90 Wash. 2d 9, 577 P.2d
975; see also W. Prosser & W. Keeton, The Law of Torts
sec. 96, at 688 (5th ed. 1984.) The rationale for the doc-
trine was stated in a holding concerning Thorazine, one of
the drugs involved here, in Stone v. Smith, Kline & French
Laboratories (11th Cir. 1984), 731 F.2d 1575, 1579:
manufacturer’s duty to warn is limited to an obli-
gation to advise the prescribing physician of any
potential that may result from the drug’s
use. This special standard for prescription drugs is
Torts, Section 388 (1965). Prescription drugs are
likely to be complex medicines, esoteric in formula
and varied in effect. As a medical expert, the
prescribing physician can take into account the
fet se Eibeentbige Cay tpmeatlenthge deo es, tal
of his patient. His is the task of weighing
the benefits of any medication against its potential
The choice he makes is an informed one,
and individualized medical judgment bottomed on
a knowledge of both patient and palliative. Phar-
maceutical companies then, who must warn ulti-
mate purchasers of dangers inherent in patent
7a
drugs sold over the counter, in selling prescription
drugs are required to warn only the prescribing
physician, who acts as a “learned intermediary”
between manufacturer and consumer.’ ” (Empha-
sis in original.) 731 F.2d 1575, 1579-80, quoting
Reyes v. Wyeth Laboratories (5th Cir. 1974), 498
F.2d 1264, 1276, cert. denied (1974), 419 U.S. 1096,
42 L. Ed. 2d 688, 95 S. Ct. 687.
The drug manufacturer generally communicates warn-
ings relating to prescription drugs to the medical profes-
sion through package inserts, the Physician’s Desk Refer-
ence, “Dear Doctor” letters, detailmen, and through other
measures. (Sterling Drug, Inc. v. Yarrow (8th Cir. 1969),
408 F.2d 978; Mahr v. G.D. Searle & Co. (1979), 72 Tl.
App. 3d 540, 562; Parke-Davis & Co. v. Stromsodt (8th Cir.
1969), 411 F.2d 1390.) The doctor, functioning as a learned
intermediary between the prescription drug manufacturer
and the patient, decides which available drug best fits the
patient’s needs and chooses which facts from the various
waruings should be conveyed to the patient, and the extent
of disclosure is a matter of medical judgment. (Hatfield
v. Sandoz-Wander, Inc. (1984), 124 Ill. App. 3d 780, 788;
Eldridge v. Eli Lilly & Co. (1985), 138 Ill. App. 3d 124, 127;
Jones v. Irvin (8.D. Tll. 1985), 602 F. Supp. 399, 402.) As
such, we believe the learned intermediary doctrine is appli-
cable here and that there is no duty on the part of man-
ufacturers of prescription drugs to directly warn patients.
Certainly, if the manufacturer of a prescription drug has
no duty to directly warn the user of the drug of possible
adverse effects, it has no duty to warn a nonuser as Kirk.
The plaintiff also argues that the warnings given to
the two doctors here were inadequate, thus making the
prescription drugs “unreasonably dangerous.” This con-
tention, however, is premature and puts the cart before
the horse. As we determined in Winnett v. Winnett (1974),
57 Ill. 2d 7, 10, whether a product is unreasonably dan-
gerous for its intended uses “is simply not a relevant
consideration unless plaintiff is a person entitled to the
8a
protections afforded by the concepts of strict-tort-liability
actions against manufacturers.” It is recognized that a
legal duty is imposed under strict liability upon those in
the original production chain of a product to the benefit of
those individuals to whom injury from a defective product
may reasonably be foreseen. (Court v. Grzelinski (1978), 72
Ill. 2d 141, 146.) Those individuals may include not only
the ultimate users or consumers, but also may include per-
sons outside the purchasing chain of the product (Restate-
ment (Second) of Torts sec. 402A, comment | (1965); Court
v. Grzelinski (1978), 72 Tl. 2d 141, 146 (holding that, to
the extent a fireman is a person to whom injury from the
product may reasonably be foreseen, he may recover under
products liability, even though his injury occurred while
fighting a fire in the course of his employment); Lewis v.
Stran Steel Corp. (1974), 57 Ill. 2d 94, 96.) In Winnett, we
said:
“In our judgment the liability of a manufacturer
properly encompasses only those individuals to
whom injury from a defective product may reason-
ably be foreseen and only those situations where
the product is being used for the purpose for which
it was intended or for which it is reasonably fore-
seeable that it may be used. Any other approach to
the problem results in making the manufacturer
and those in the chain of product distribution vir-
tual insurers of the product, a position rejected by
this court in Suvada.” 57 Ill. 2d 7, 11.
Winnett determined that whether a plaintiff is enti-
tled to the protection afforded by the concepts of strict tort
liability depends on whether the alleged conduct was rea-
sonably foreseeable. “A foreseeability test, however, is not
intended to bring within the scope of the defendant’s liabil-
ity every injury that might possibly occur.” (57 Ill. 2d 7, 12;
see also Riordan v. International Armament Corp. (1985),
132 Ill. App. 3d 642 (no duty on part of the handgun manu-
facturer to warn consumers of illegal handgun uses for the
benefit of a shooting victim).) Questions of foreseeability
9a
are ordinarily for a jury to resolve, but where the facts
alleged in a complaint on their face demonstrate that the
plaintiff would never be entitled to recover, that complaint
is properly dismissed. (Winnett v. Winnett (1974), 57 Ill. 2d
7, 13.) We believe that facts alleged in counts IV and V
against Squibb and SmithKline demonstrate on their face
that plaintiff would never be entitled to recover. As such,
it cannot be said that Squibb and SmithKline demonstrate
on their face that plaintiff would never be entitled to recov-
er. As such, it cannot be said that Squibb and SmithKline
should have reasonably foreseen that their drugs would
be dispensed without warnings by the physicians, that the
patient would be discharged from the hospital, drink alco-
hol, drive a car, lose control of his car, hit a tree, and
injure the passenger, Kirk, on the same day. This sequence
would be triggered by an element that we have determined
that the pharmaceutical companies did not have to foresee
under the circumstances shown here: that the drugs would
be dispensed without the warnings that the two companies
provided to the physicians. As this court has noted, “[s]trict
liability is not the equivalent of absolute liability. There
are restrictions imposed upon it.” (Woodill v. Parke Davis
& Co. (1980), 79 Ill. 2d 26, 37; see also Coney v. J.L.G.
Industries, Inc. (1983), 97 Tl. 2d 104, 111.) The trial court
properly dismissed the two strict liability counts against
Squibb and SmithKline.
The pharmaceutical companies say that the trial court
properly denied the plaintiff’s oral request to file a fourth
amended complaint. The plaintiff asks that we grant
leave to amend under Rule 362 (87 Ill. 2d R. 362(f)). A
trial court has broad discretion in determining whether
_ to allow amendments to a complaint. (Deasey v. City
of Chicago (1952), 412 Ill. 151, 156-57; Saldana v. Wirtz
Cartage Co. (1978), 74 Ill. 2d 379, 390.) The plaintiff’s pro-
posed amended complaint does not appear in the record;
the plaintiff’s failure to make it a part of the record waives
his right to have this court review the trial court’s denial
10a
of his motion. Teter v. Clemens (1986), 112 Ill. 2d 252,
260-61; Austin Liquor Mart, Inc. v. Department of Revenue
(1972), 51 Til. 2d 1, 8.
Turning to the portions of the complaint charging
Michael Reese, the plaintiff posits liability in counts I, IV,
and V against the hospital on two theories: strict liabil-
ity and negligence. Under the strict liability counts, the
plaintiff alleges that the products—the prescription drugs—
were made unreasonably dangerous through the hospital’s
alleged failure to warn the patient, McCarthy, of their pos-
sible adverse effects. The plaintiff correctly states that
strict tort liability may be imposed upon sellers and those
in the chain of distribution, as well as manufacturers, for
their role in placing a defective product into the stream
of commerce. (Crowe v. Public Building Com. (1978), 74
Il. 2d 10, 13; Cunningham v. MacNeal Memorial Hospital
(1970), 47 Ill. 2d 443.) The plaintiff bases his strict lia-
bility count against the hospital on the hospital’s role in
the chain of distribution, “standing between the manufac-
turer and the doctor,” and also as the supplier of the pre-
scription drug to McCarthy. For the reasons discussed con-
cerning the pharmaceutical companies, we believe there is
no duty here to this nonpatient, nonuser of the product,
and, as such, Kirk is not a plaintiff entitled to protection
under strict liability principles. Too, in Dubin v. Michael
Reese Hospital & Medical Center (1980), 83 Ill. 2d 277,
and Greenberg v. Michael Reese Hospital & Medical Cen-
ter (1980), 83 Ill. 2d 282, this court held that a hospital
cannot be held strictly liable for its employees’ decision to
administer X-ray treatments for tonsillitis because such an
allegation is directed at the conduct of the health care pro-
fessional rather than the nature of the particular product.
An action directed at the appropriateness of X-radiation
treatment is already afforded a sufficient remedy in the
law of negligence. (83 Ill. 2d 282, 290.) As we discussed
earlier, the learned intermediary doctrine requires that the
pharmaceutical company warn the physician of the known
lla
adverse effects of a particular prescription drug. The doc-
tor, exercising his medical judgment, decides if drug ther-
apy is an appropriate t-eatment for a psychiatric patient
and decides which drugs will best suit his patient’s needs.
As was stated in Stone v. Smith, Kline & French Labora-
tories (11th Cir. 1984), 731 F.2d 1575, 1579, “This special
standard for prescription drugs is an understandable excep-
tion to the Restatement’s general rule that one who mar-
kets goods must warn foreseeable ultimate users of dangers
inherent in his products.” We must also recognize that
“(t]he marketing situation as regards prescription drugs
and vaccines is a unique one.
*** The producer’s basic responsibility in this area is to
provide adequate warnings to physicians. It is the physi-
cian who is in the best position to decide when to use and
how and when to inform his patient regarding risks and
benefits pertaining to drug therapy.” (W. Prosser & W.
Keeton, The Law of Torts sec. 96, at 688 (5th ed. 1984).)
As such, the manufacturer is only obligated to adequately
warn the physicians, who decide which drug to use and
which warnings to provide. The drug companies are not
required to warn hospital personnel because they do not
select the proper drugs for the patient and prescribe them.
Although the holding of Greenberg is not directly applica-
ble here, we believe its rationale is:
“In cases involving goods and other tangible phys-
ical materials which are in some way bad, imposi-
tion of liability unquestionably enhances the pub-
lic interest in human life and health. However,
in cases which deal with the conduct of individu-
als or institutions which themselves are pledged to
human life and health, precautions must
be taken to avoid an ultimate diminution of pro-
tection. *** For the reasons stated we conclude
that public policy dictates against the imposition
of strict liability in tort for injuries resulting from
the administration of X-radiation treatments by
a hospital.” v. Michael Reese Hospital
(1980), 83 Ill. 2d 282, 290-91.
12a
We believe the trial court properly dismissed this strict
liability count against the hospital.
As for the negligence count against the hospital, the
plaintiff’s complaint alleges that Michael Reese had a duty,
in prescribing the two drugs, to adequately warn McCarthy
of adverse effects the drugs may have on his ability to
safely operate an automobile. The hospital contends that
it had no duty to warn McCarthy of the adverse effects
of the drug because such a warning is a medical question
within the discretion of the treating physician, who, the
hospital says, bears this responsibility. The hospital also
argues that its duties should not be extended to unknown,
nonpatient, third parties.
Kirk makes no allegations that Drs. Fine or Tracer,
the defendant physicians, were agents or employees of
Michael Reese, which would postulate liability on a respon-
deat superior basis. Absent a principal-agent relationship,
the alleged misconduct of a physician may not be imputed
to the hospital, unless it had reason to know that malprac-
tice would occur. (Pickle v. Curns (1982), 106 Ill. App.
3d 734, 738-39.) Nor does the complaint allege that the
hospital, through cone of its agents or employees, was neg-
ligent in administering the drugs prescribed to McCarthy
by, for example, providing the wrong quantity or type of
drug. (Ohligschlager v. Proctor Community Hospital (1973),
55 Til. 2d 411, 420.) The extent of warnings to patients
concerning prescription drugs, as we have previously not-
ed, is within the discretion of the physician. As such, the
alleged negligent acts specified in the complaint are mat-
ters within the duty of care owed by the treating physician,
rather than the hospital.
Recognizing the physician’s duty, the plaintiff also
argues that the hospital has an independent duty to warn,
which is “based on ordinary principles of professional mal-
practice,” and that that duty is extended to third parties.
With this contention, then, the plaintiff is arguing that
13a
a third party with no patient/hospital or patient/physician
relatiénship be allowed to bring a cause of action based on
the alleged negligent treatment of another.
A complaint for negligence, to be legally sufficient,
must set out facts that establish the existence of a duty
owed by the defendant to the plaintiff, a breach of that
duty, and an injury proximately caused by that breach.
(Teter v. Clemens (1986), 112 Ill. 2d 252, 256; Curtis v.
County of Cook (1983), 98 Il. 2d 158, 162.) The determina-
tion of whether a duty exists—whether the defendant and
the plaintiff stood in such a relationship to one another
that the law imposed upon the defendant an obligation
of reasonable conduct for the benefit of the plaintiff—is
an issue of law to be determined by the court. Wimmer
v. Koenigseder (1985), 108 Tl. 2d 435, 440; Pelham v.
Griesheimer (1982), 92 Ill. 2d 13, 18-19; Cunis v. Brennan
(1974), 56 Ill. 2d 372.
This court has held that “the existence of a legal
duty is not to be bottomed on the factor of foreseeability
alone,” but on whether the harm reasonably was foresee-
able. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 375 (the
defendant municipality owed no duty to the plaintiff, who
was injured when he was thrown 30 feet upon the collision
with a third person’s automobile and impaled his leg on
a drain pipe left in the defendant’s public parkway); see
also Feldscher v. E&B, Inc. (1983), 95 Ill. 2d 360, 368-69;
Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 342-
43, 162 N.E. 99, 100; 3 F. Harper, F. James & O. Gray, The
Law of Torts sec. 18.2, at 664 (2d ed. 1986).) This standard
of reasonable foreseeability governs the foreseeability of
injury from the defendant’s conduct to the plaintiff, who
would be the passenger here in the patient’s car.
Although the reasonable foreseeability of injury is a
key concern in determining whether a duty exists, it is
not the only consideration. The question of duty in a neg-
ligence action should take into account the likelihood of
l4a
injury, the magnitude of the burden of guarding against
it and the consequences of placing that burden upon the
defendant. (Lance v. Senior (1967), 36 Ill. 2d 516, 518;
Boyd v. Racine Currency Exchange, Inc. (1973), 56 Tl. 2d
95, 99; see also Scott & Fetzer Co. v. Montgomery Ward &
Co. (1986), 112 Ill. 2d 378, 388-89; Resag v. Washington
National Insurance Co. (1980), 90 Tl. App. 3d 971, 974;
Van Skike v. Zussman (1974), 22 Ill. App. 3d 1039, 1042.)
As we said in our discussion of the strict liability counts,
and based on the Plaintiff’s claimed defects in the warn-
ings, this injury may not be considered reasonably foresee-
able. This is particularly true where there is no allegation
that the hospital’s employees neither knew nor had reason
to know that the warnings were not given by the prescrib-
ing physician. The burden of guarding against the type
of injury that occurred to this plaintiff would be very cum-
bersome for the hospital employees, who do not receive the
prescription drug warnings from the pharmaceutical com-
panies, as do the physicians. In analogous circumstances,
negligence claims against pharmacists for failure to warn
concerning overconsumption of drugs have been dismissed
primarily because the manufacturers’ warnings about pre-
scription drugs are to be given to the physicians, who then
had the duty to warn the patients. S-v Eldridge v. Eli Lilly
& Co. (1985), 138 Ill. App. 3d 124; Jones v. Irvin (S.D. Ill.
1985), 602 F. Supp. 399.
Holding the hospital liable for all harmful acts com-
mitted by patients who have been released would be an
unreasonable burden on the institution. Too, a court’s
determination of duty reflects the policy and social require-
ments of the time and community. (Mieher v. Brown
(1973), 54 Ill. 2d 539, 544-45; Green, Foreseeability In Neg-
ligence Law, 61 Colum. L. Rev. 1401, 1423 (1961); Prosser,
Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953).) It has
been recognized that “ ‘duty’ is not sacrosanct in itself, but
is only an expression of the sum total of those considera-
tions of policy which lead the law to say that the plaintiff is
15a
entitled to protection.” (W. Prosser & W. Keeton, The Law
of Torts sec. 53, at 358 (5th ed. 1984).) Our State’s pub-
lic policy concerning malpractice actions and health care
professionals was recently discussed in Bernier v. Burris
(1986), 113 Il. 2d 219. This court observed that the leg-
islature’s goal in enacting a comprehensive medical mal-
practice law, in which one provision prohibited punitive
damages in actions for “healing art malpractice” or medi-
cal malpractice, was to reduce damages generally against
the medical profession. (113 Ill. 2d 219, 246.) In upholding
the provision that limited attorney fees in successful med-
ical malpractice actions, we observed that “[tJhe goals of
the legislation” * * were to reduce the burden existing in
the health professions as a result of the perceived [medical]
malpractice crisis.” (113 Ill. 2d 219, 252; see also Mega
v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 428.) We
believe that public policy and social requirements do not
require that a duty be placed upon the hospital to warn
the patient of the dangers of using the drug, prescribed
by his physician, that would be extended to third-party
nonpatients who have no patient hospital relationship or a
special relationship with a patient.
In determining that a duty existed, the appellate court
relied partially on Renslow v. Mennonite Hospital (1977),
67 Ill. 2d 348, a decision that the hospital contends does not
support the expanded duty of care imposed by the appellate
court. Renslow, it would appear, is the only medical mal-
practice action in which this court recognized that a nonpa-
tient third party with no patient-hospital or patient-doctor
relationship was allowed to maintain a cause of action
against a hospital and doctor. In Renslow, a child not con-
ceived at the time negligent acts were committed against
its mother by a doctor and hospital employees was allowed
to sue for that negligence directed against its mother. A
wrong against one person may invade the protected rights
of one who has a special relationship with the first party, as _.
the law recognizes a limited area of transferred negligence.
lé6a
(Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 257;
see also Hofmann v. Blackmon (Fla. App. 1970), 241 So.
2d 752.) The transfer of duty is limited by a court’s policy
decision that the duty to act with reasonable care should
be transferred to the third-party plaintiff. This duty, how-
ever, arises from a special relationship between either the
defendant and the other party or the third-party plaintiff
and the other party. The duty in Renslow was based pri-
marily on the injury’s being a direct result of alleged neg-
ligence to the infant’s mother, which was found to have
invaded the protected rights of the child, who was inti-
mately related to the mother. Obviously, that type of rela-
tionship does not exist between McCarthy, the patient who
allegedly received negligent care, and Kirk, the passenger
in his car.
As we stated in Teter v. Clemens (1986), 112 Ill. 2d
252, 258, “[t]he basis for liability in a negligence action
is not the mere fact of injury but that an injury has been
caused by fault.” The negligence count against the hospital
failed to state a cause of action because it lacks the first
essential element in a negligence claim: a recognized duty
of care owed by the defendant to the particular plaintiff.
The trial court properly dismissed this count.
Much of our discussion of the negligence count against
the hospital is applicable to the counts against the two
doctors. The plaintiff says the treating physicians had a
duty to warn their patient, McCarthy, that the drugs could
diminish his physical and mental abilities and that duty
runs in favor of those in the reasonably foreseeable field of
danger, which included Kirk. The plaintiff also contends
that it was reasonably foreseeable that a patient who is
given a drug that diminishes his driving abilities will later
have a car accident. Thus, the plaintiff argues, the cir-
cumstances of this case give rise to a common law duty
to warn, running from the doctors to those in the general
public who may reasonably be expected to come in con-
17a
tact with the patient on the day he is released. Dr. Tracer
acknowledges that he had a duty to warn his patient about
adverse effects that may result from taking a prescription
drug. He argues, however, that physicians do not owe a
general duty to unknown nonpatients who are injured by
the physician’s alleged negligent treatment of a patient.
Dr. Tracer also asserts that the public policy of this State
prohibits such a broad duty being imposed against treating
physicians. Both doctors also say that the events alleged
in the plaintiff’s third amended complaint that resulted in
Kirk’s injury were not reasonably foreseeable. The third
amended complaint specifically alleges that Dr. Tracer ren-
dered medical treatment to McCarthy in the capacity of
agent/servant or employee of Dr. Fine and is thus based
on a respondeat superior theory. Dr. Fine argues that the
trial court properly dismissed the plaintiff’s claim based on
respondeat superior for failure to state a cause of action and
also because the complaint alleges a superseding, interven-
ing cause of plaintiff’s injuries, McCarthy’s alleged negli-
gent driving.
With the exception of Renslow, discussed previously
with reference to the hospital, the plaintiff has not cited
any holding in which this court has extended a physi-
cian’s duty of care beyond the patient. In Renslow, this
court recognized that the defendant doctor’s duty to the
mother could be transferred to her child based on the “in-
timate relationship” between the two. (67 Ill. 2d 348, 357.)
There is no patient-doctor relationship here between the
two defendant doctors and Kirk, nor is there a special rela-
tionship present as in Renslow between the patient and the
plaintiff.
Many of the decisions upon which the plaintiff relies
(Semler v. Psychiatric Institute (4th Cir. 1976), 538 F.2d
121; Lipari v. Sears, Roebuck & Co. (D. Neb. 1980), 497 F.
Supp. 185; Grimm v. Arizona Board of Pardons & Paroles
(1977), 115 Ariz. 260, 564 P.2d 1227; Missouri, Kaneas &
18a
Texas Ry. Co. v. Wood (1902), 95 Tex. 223, 66 S.W. 449;
Williams v. United States (D.S.D 1978), 450 F. Supp. 1040;
Leverett v. State (1978), 61 Ohio App. 2d 35, 399 N.E.2d
106; McIntosh v. Milano (1979), 168 N.J. Super. 466, 403
A.2d 500) have imposed a duty on doctors and medical or
penal institutions with physical custody of dangerous indi-
viduals to protect third parties by taking reasonable mea-
sures to control their charge’s conduct. These decisions
represent an exception to the general proposition that there
is no duty to control conduct of a third person to prevent
him from causing harm to another absent a special rela-
tionship between either the dangerous person or potential
victim. (Restatement (Second) of Torts sec. 315 (1965);
Welke v. Kuzilla (1985), 144 Mich. App. 245, 375 N.W.2d
403; Davis v. Mangelsdorf (Ariz. App. 1983), 138 Ariz. 207,
673 P.2d 951.) There are types of relationships that give
rise to a duty to control a third party’s conduct set out in
sections 316 to 319 of the Restatement (Second) of Torts
(1965), but none are applicable here. These decisions upon
which the plaintiff relies are primarily concerned with a
custodian’s duty and frequently rely on section 319 of the
Restatement (Second) of Torts (1965), concerning the “duty
of those in charge of person having dangerous propensi-
ties.” There is no allegation here that the plaintiff was
negligently released from the hospital, and there is no alle-
gation that McCarthy had dangerous propensities of which
the hospital and physicians were aware.
It is true, as the plaintiff points out, that several juris-
dictions (Welke v. Kuzilla (1985), 144 Mich. App. (245, 375
N.W.2d 403; Davis v. Mangelsdorf (Ariz. App.) 1983), 138
Ariz. 207, 673 P.2d 951; Gooden v. Tips (Tex. App. 1983),
651 S.W.2d 364; Wharton Transport Corp. v. Bridges.
(Tenn. 1980), 606 S.W.2d 521; Watkins v. United States (5th
Cir. 1979), 589 F.2d 214; Freese v. Lemmon (Iowa 1973),
210 N.W.2d 576; Kaiser v. Suburban Transportation System
(1965), 65 Wash. 2d 461, 398 P.2d 14, modified (1965), 401
P.2d 350) have held that a physician’s relationship with the
19a
patient was sufficient to impose a duty to protect uniden-
tifiable, unknown third parties who are endangered by a
patient. Other jurisdictions have limited the scope of the
physician’s duty to warn situations in which there is, apart
from the patient, a specifically identifiable potential victim,
rather than holding that a duty exists to the public gener-
ally. (See, e.g., Furr v. Spring Grove State Hospital (1983),
53 Md. App. 474, 454 A.2d 414; Cairl v. State (Minn.
1982), 323 N.W.2d 20; Anthony v. United States (S.D. Iowa
1985), 616 F. Supp. 156.) We consider that the preferable
view, and the one consistent with this court’s holdings and
with legislation based on social and public policy, is that
a plaintiff cannot maintain a medical malpractice action
absent a direct physician-patient relationship between the
doctor and plaintiff (or a special relationship, as present)
in Renslow, between the patient and the plaintiff. See also
Pelham v. Griesheimer (1982), 92 Til. 2d 13, 21 (a third-
party nonclient who brings a negligence action against an
attorney must prove that the primary purpose and intent
of the attorney-client relationship itself was to benefit or
influence the third party).
Dr. Tracer points out that the most effective way to
fulfill the duty required by the appellate court’s decision
is through continued confinement of the patient, which
he says would thwart drug therapy that enables psychi-
atric patients to return to the community to lead normal,
productive lives. The plaintiff contends, however, that
Dr. Tracer has falsely portrayed the burden of the physi-
cian’s duty under the appellate court’s decision. All that is
necessary for a physician to extinguish is potential liabil-
ity, in the plaintiff’s view, is for the physician to tell the
patient that the drug will diminish his physical and men-
tal abilities, that he should not drive for a designated time
period, and that he should not consume alcohol. The plain-
tiff overlooks that the appellate court decision explicity
extends the duties of the doctors—and, for that matter, all
the defendants—beyond the patient to the general public.
20a
Such a broad duty extended to the general public would
expand the physician’s duty of care to an indeterminate
class of potential plaintiffs. Our General Assembly, as we
discussed previously, has very recently enacted major med-
ical malpractice legislation to reduce the burden of litiga-
tion against health care professionals. We must conclude
that the plaintiff here does not fall into the class of persons
to whom the duty of care is owed by the defendant doctors.
(See Curtis v. County of Cook (1983), 98 Ill. 2d 158.) The
trial court properly dismissed the action against Dr. Tracer
because no special relationship existed between the doctor
and the plaintiff, or between the patient and the plain-
tiff, as in Renslow. The trial court had granted Dr. Fine’s
motion for judgment on the pleaditigs, based on the ground
that a wholly derivative action could not stand against
a principal where there is no cause of action against the
agent. When suit is brought against a master based on the
alleged negligent acts of his servant, and no independent
negligent acts are alleged against the master, the master’s
liability is entirely derivative (Towns v. Yellow Cab Co.
(1978), 73 Tl. 2d 113.) Where the agent is not guilty, it
necessarily follows that the party for whom he acted, the
master, cannot be guilty. Because the action against Dr.
Fine is a derivative action, based on Dr. Tracer’s treatment
of McCarthy as Dr. Fine’s agent, it was also properly dis-
Other contentions of the plaintiff need not be consid-
ered because the first essential of a negligence action— the
existence of a recognized duty— has not been met.
For the reasons stated, the judgment of the appellate
court is reversed as to all counts and the judgment of the
trial court is affirmed.
2la
Appellate court reversed;
circuit court affirmed.
CHIEF JUSTICE CLARK and _ %JUSTICE
GOLDENHERSH took no part in the consideration or
decision of this case.
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 pharma-
ceutical companies for failure to give adequate warnings
of the drugs’ dangerous propensities. The cause of action
against the doctors presents neither the problems inher-
ent in upholding the negligence count against the hospital
nor the complex policy considerations involved in extend-
ing the boundaries of the tort of medical malpractice. (Slip
op. at 13.) Rather, the doctors’ liability here is grounded
in basic concepts of negligence, the same primary elements
ot 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 guard-
ing against it and the consequences of placing that bur-
den upon the defendant.” (Slip op. at 10, citing Lance v.
Senior (1967), 36 Ill. 2d 516, 518; Boyd v. Racine Currency
Exchange, Inc. (1973), 56 Tl. 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 dis-
cussed in their insert, the patient would have been aware
that:
22a
“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 reac-
tions may occur which require immediate medi-
cal attention. Potentiation of the effects of alcohol
may occur with the use of this drug.”
The doctors’ failure to issue this warning set into
motion a series of events which culminated in an injury
to a forseeable 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 ll.
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 respon-
sibie for the natural consequences that flow from their fail-
ure to issue proper warnings to their patient. These con-
sequences 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 the doctors’ duty of care (slip op. at
23 a
14) is overly narrow under any modern theory of negli-
gence. 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 inde-
terminable number of persons is misplaced. (Slip op. at
14.) 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 major-
ity’s comparision of the facts presented here to the situa-
tion in the famous case of Palsgraf v. Long Island, R.R. Co.
(1928), 248 N.Y. 339, 162 N.E. 99, is therefore, inappropri-
ate. The injury there was far more remote from the negli-
gent 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 i in it the potency of peril
to persons thus removed ***. If no hazard was
24a
apparent to the eye of ordinary vigilance, an act
innocent and harmless, at least to outward seem-
ing, 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 pas-
senger 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 appro-
priate 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:
“[(TjJhe scope of duty is concerned with exactly the
same factors as is the inquiry into whether con-
duct is unreasonably dangerous (i.e., negligent).
Both seek to find what consequences of the chal-
lenged 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 ce. In boti we look to see what natu-
ral 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 sec. 18.2, at 656-57 (2d ed. 1986).
The plaintiff’s cause of action in this case fits squarely
25a
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 drugs.
The majority’s decision to dismiss the strict liabil-
ity claim for failure to provide adequate warnings is also
questionable. The court’s ruling effectively holds that the
learned intermediary doctrine, which absolves a pharma-
ceutical manufacturer of liability for harmful side effects
of the prescribed drug once health-care professional 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 exis-
tence of the warnings the pharmaceutical company gave
with respect to the medicine prescribed here.
The broad reach of this holding results from the major-
ity’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 warn-
ings 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
26 a
pharmaceutical companies did not have to fore-
see under the circumstance shown here: that the
drugs would be dispensed without the warnings
that the two companies provided to the physicians.”
(Emphasis added.) Slip op. at 6-7.
The majority, in assuming the warnings were ade-
quate, 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:
“[TJhe sufficiency of the warnings is not resolved
judicially *** but remains a question to be resolved
by the trier of facts ***. *** Here, since the
counts against the drug manufacturers were dis-
missed because of a failure to state a cause of
action [citation], the factual question as to the ade-
quacy 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 obliga-
tion 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.)
27 a
STATE OF ILLINOIS
SUPREME Court CLERK
SUPREME COURT BUILDING
SPRINGFIELD 62706
March 18, 1986
JULEANN HORNYAK
CLERK OF THE COURT
(217) 782-2035
Ms. Ann W. Regan
Wildman, Harrold, Allen,
and Dixon
Attorneys at Law
One IBM Plaza, S#3000
Chicago, IL 60611
THE COURT HAS TODAY ENTERED THE FOLLOW-
ING ORDER IN THE CASE OF:
No. 62700 - James D. Kirk, respondent, v. Michael Reese
Hospital and Medical Center, et al., etc.
(Henry K. Fine, M.D., petitioner).
No. 62701 - James D. Kirk, respondent, v. Michael Reese
Hospital and Medical Center, et al., etc.
(Irving H. Tracer, M.D., petitioner).
No. 62702 - James D. Kirk, respondent, v. Michael Reese
Hospital and Medical Center, petitioner.
No. 62703 - James D. Kirk, respondent, v. Michael Reese
Hospital an Medical Center, et al., etc. (E. R.
Squibb & Sons, petitioner).
No. 62704- James D. Kirk, respondent, v. Michael Reese |
Hospital and Medical Center, et al., etc.
28 a
(SmithKline Clinical Laboratories, Inc., peti-
tioner).
The motions by petitioners for leave to file
motions for reconsideration of the orders
denying the petitions for leave to appeal are
allowed.
The motions for reconsideration are allowed.
The petitions for leave to appeal are allowed,
and these cases are consolidated.
JH: sdl
ce: All Attorneys of Record
29a
FEB 26 1986 |
: Nos. 62700, 62701,
62702, 62703, 62704
IN THE
SUPREME COURT OF ILLINOIS
JAMES D. KIRK, fl On Petition for Leave
Plaintiff-Respondent, Girt
| oe. of Illinois, First
MICHAEL REESE HOSPITAL sicasdist
and MEDICAL CENTER; No. 81-2408
IRVING H. TRACER, M.D.;
E.R. SQUIBB & SONS, INC.;
and SMITHKLINE CLINICAL —_( T*re heard on Appeal
LABORATORIES, INC., Goss oF ack
Defendants-Petitioners, County, County
Dept., Law
and Division
DANIEL MCCARTHY, Hesecshle,
yron T. Gomberg,
Defendant. J Judge Presiding
NOTICE OF MOTION
TO: Mitchell W. Horwitz
Horwitz, Horwitz & Associates, Ltd.
180 North LaSalle Street, Suite 2201
Chicago, IL 60601
PLEASE TAKE NOTICE that on February 24, 1986
the undersigned filed the attached Motion For leave to
File Motion For Reconsideration and Motion for Reconsid-
eration, copies of which are hereby served upon you, by
mailing copies thereof to the Clerk of the Illinois Supreme
Court, Springfield, Illinois and by mailing copies thereof to
each Justice of the Illinois Supreme Court at the addresses
listed below:
Honorable William G. Clark, Chief Justice of the Illinois
Supreme Court, 30th Floor, Richard J. Daley Center,
30a
Chicago, Illinois 60602
Honorable Daniel P. Ward, Justice of the Dlinois Supreme
Court, 30th Floor, Richard J. Daley Center, Chicago,
Illinois 60602
Honorable Joseph H. Goldenhersh, Justice of the Illinois
Supreme Court, 6464 W. Main Street, Suite 3A, Belleville,
Tllinois 62223
Honorable Howard C. Ryan, Justice of the Dlinois Supreme
Court, 111 E. Jefferson Street, Ottawa, Illinois 61350
Honorable Thomas J. Moran, Justice of the Illinois Supreme
Court,
Honorable Seymour Simon, Justice of the Illinois Supreme
Court, 30th Floor, Richard J. Daley Center, Chicago,
Illinois 60602
Honorable Ben C. Miller, Justice of the Dlinois Supreme
Court, 509 S. 6th Street, Suite 435, Springfield,
Illinois 62701
BURDITT, BOWLES & RADZIUS, LTD.
/s/ RoBert G. EPSTEEN
Robert G. Epsteen
Attorneys for E.R. Squibb &
Sons, Inc.
By:
Robert G. Epsteen
Burditt, Bowles & Radzius, Ltd.
33 West Wacker Drive, Suite 1900
Chicago, IL 60606-1218
(312) 781-6633
3la
PROOF OF SERVICE
a~
STATE OF ILLINOIS
COUNTY OF COOK
7
I, Marilou Sullivan, a non-attorney, on oath state that
I served the above and foregoing Notice of Motion, Motion
for Leave to File Motion for Reconsideration and Motion
for Reconsideration to the attorney and judges named on
the attached service list and by depositing same in the US.
mail chute located at 333 West Wacker Drive, Chicago,
Illinois 60606 before the hour of 5:00 p.m. on this 24th day
of February, 1986.
/g/__MAartLou SULLIVAN
SUBSCRIBED AND SWORN to
before me this 24th day
of February, 1986.
/s/__NANCY MULLANY
Notary Public
32a
BurpiTt, Bowes & Rapzius, Ltp. MAR 06 1986
333 WEST WACKER DRIVE
SUITE 1900
CHICAGO, ILLINOIS 60606-1218
(312) 781-6633
TELEX: 350188
G3 FAX: (312) 781-6630
March 3, 1986
VIA FEDERAL EXPRESS
The Honorable Thomas J. Moran
838 North Western Avenue
Lake Forest, IL 60045
Re: James D. Kirk v. Michael Reese Hospital et al.
Dear Justice Moran:
Enclosed is a copy of a motion for reconsideration and
a motion for leave to file it in the above-referred to mat-
ter. Your copy was inadventently mailed to your former
address in Waukegan and returned to us. My apologies for
any inconvenience this may have caused you.
Respectfully yours,
RoBErT G. EPSTEEN
Robert G. Epsteen
/s/.
RGE/mls
Encls.
cc: All Counsel of Record
Teeth, #
8 APA Lhe Pane | Wee eC wee
COP EA RONG I oa Rey Lite: tt oe:
33 a
SUPREME COURT OF ILLINOIS
WEDNESDAY, FEBRUARY 5, 1986
THE FOLLOWING CASES ON THE LEAVE TO APPEAL
DOCKET WERE DISPOSED OF AS INDICATED:
No. 62700 -
No. 62701 -
No. 62702 -
No. 62703 -
No. 62704 -
James D. Kirk, respondent, v. Michael Reese
Hospital and Medical Center, et al., etc.
(Henry K. Fine, M.D., petitioner). Leave to
appeal, Appellate Court, First District. (1-
81-2408)
Petition for leave to appeal denied.
James D. Kirk, respondent, v. Michael Reese
- Hospital and Medical Center, et al., etc.
(Irving H. Tracer, M.D., petitioner). Leave
to appeal, Appellate Court, First District.
(1-81-2408)
Petition for leave to appeal denied.
James D: Kirk, respondent, v. Michael Reese
Hospital and Medical Center, petitioner.
Leave to appeal, Appellate Court, First Dis-
trict. (1-81-2408)
Petition for leave to appeal denied.
James D. Kirk, respondent, v. Michael Reese
Hospital an Medical Center, et al., etc. (E. R.
Squibb & Sons, petitioner). Leave to appeal,
Appellate Court, First District. (1-81-2408)
Petition for leave to appeal denied.
James D. Kirk, respondent, v. Michael Reese
Hospital and Medical Center, et al., etc.
(SmithKline Clinical Laboratories, Inc., peti-
tioner). Leave to appeal, Appellate Court,
First District. (1-81-2408)
Petition for leave to appeal denied.
34a
THIRD DIVISION
August 28, 1985
NOTICE
The text of this opinion may be changed
or corrected prior to the time for filing
of a Petition for Rehearing or the dispo-
sition of the same.
81-2408
JAMES D. KIRK, -
Plaintiff-Appellant,
i Ae ee Te ee
v8.
MICHAEL REESE HOSPITAL Appeal From The Circuit
and MEDICAL CENTER; Court of Cook County.
IRVING H. TRACER, M.D.; —_—
E.R. SQUIBB & SONS, INC.; » Honorable
and SMITHKLINE CLINICAL Myron T. Gomberg,
LABORATORIES, INC., Judge Presiding.
Defendants-Appellees,
and
DANIEL McCARTHY,
Defendant. J
JUSTICE RIZZI delivered the opinion of the court:
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 defen-
dant Michael Reese Hospital and Medical Center; count
2 involves a medical negligence action against defendants
Irving 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 defendant
Michael Reese Hospital and Medical Center and defendant
E.R. Squibb & Sons, Inc.; and count 5 involves a prod-
35a
uct liability action against defendant Michael Reese Hospi-
tal and Medical Center and defendant SmithKline Clinical
Laboratories, Inc. In count 2, plaintiff alleges that Tracer
acted as the agent of Fine. Count 6, which involves a neg-
ligence action against defendant Daniel 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, manufac-
tured (by Squibb & Sons, and the prescription drug Tho-
razine, 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 than con-
sumed an alcoholic beverage and drove his automobile with
plaintiff as a passenger. The drugs Prolixin Decanoate
and Thorazine diminished McCarthy’s mental and physi-
cal 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 manufac-
turers 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
view the 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 ques-
OO
36a
tion 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 gener-
alized 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 guard-
ing 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. See Renslow v.
Mennonite Hospital (1977), 67 Tll. 2d 348, 356, 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; Meiher 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,
440 N.E.2d 253, 256.
With regard to the question of whether it was fore-
seeable that defendants’ failure to warn’ would result in
injury to plaintiff, we apply a standard of objective rea-
sonableness. 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. See Renslow,
67 Ill. 2d at 357, 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.
1 Since a duty to warn includes a duty to adequately warn Mahr
v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 562, 390 N.E.2d
1214, 1230), when we refer to a failure to warn in the text, we
implicitly include a failure to adequately warn.
37a
(1935), 361 Ill. 95, 103, 197 N.E. 578, 582; Orrico, 109 Ill.
App. 3d at 107, 440 N.E.2d at 257. With these consider-
ations 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 consump-
tion of an alcoholic beverage and his negligent driving con-
stitute superseding intervening causes of the occurrence.
A superseding intervening cause is a subsequent indepen-
dent 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 interven-
tion of an independent action will not break a causal con-
nection 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 Il. at 104, 197 N.E. at
583; Orrico, 109 Ill. App. 3d at 107, 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 pres-
ence in the automobile were all within the realm of rea-
sonable 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 guard-
ing 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 plac-
ing 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
38 a
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.” We do not find defendants’ arguments per-
suasive.
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 manu-
facturers have a duty to warn the medical profession of
the adverse effects of their drugs, and that these duties
? The adequacy of a prescription drug manufacturer’s warnings
is determined by taking into account all aspects of the warnings,
including the content of the warnings and how and to whom the
warnings are conveyed. As an example, a drug manufacturer
may communicate product information to the medical profession
in a number of ways: package inserts, the Physicians’ Desk Ref-
erence, “Dear Doctor” letters and detailmen. Ultimately, the
sufficiency of the warnings is not resolved judicially by pointing
to a single document or act, but remains a question to be resolved
by the trier of fact in light of all the information provided by
the manufacturer and all the information that it was reason-
ably possible to provide. See Mahr, 72 Ill. App. 3d at 562, 390
N.E.2d at 1230. The trier of fact may consider warnings given by
drug manufacturers to physicians to be adequate (e.g., Lawson
v. GD. Searle & Co. (1976), 64 Ill. 2d 543, 553, 356 N.E.2d
779, 784) or inadequate (eg. Mahr, 72 Ill. App. 3d at 563-65,
390 N.E.2d at 1231-32). Also, with regard to oral contraceptives,
the drug manufacturer may have a duty to warn the consumer.
Stephens v. G.D. Searle & Co. (E.D. Mich. 1985), 602 F. Supp.
379; MacDonald v. Ortho Pharmaceutical Corp. (Mass. 1985), 475
N.E.2d 65. Here, since the counts against the drug manufactur-
ers were dismissed because of a failure to state a cause of action
(ll. Rev. Stat. 1983, ch. 110, par. 2-615), 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 manu-
facturers to the medical profession is not before us.
a
i
t
é
-
2
39a
implicitly extend to cover members of the public who may
be injured as a proximate cause of a failure to adequately
warn. Moreover, we believe that the imposition of such a
duty in favor of the public is not a 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 manu-
facturers to adequately warn of the adverse effects of drugs
substantially outweigh the added burden to doctors, hos-
pitals and drug manufacturers to be fully responsible for
their wrongdoing. Additionally, the imposition of a per-
tinent 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 mem-
ber 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 “thwart the recent advances in drug therapy.” They
also contend that it would open the door to limitless medi-
cal negligence suits by an infinite class of plaintiffs and
that it would make them absolutely liable. These con-
tentions miss the point.
40a
The duty which is involved here simply requires a
warning, not control or prevention. In this regard, we point
out that the duty to warn would arise only if the doctors,
hospitals or drug manufacturers know or should know of
the adverse effects of a drug. The duty is plainly nonjudg-
mental. Moreover, we are speaking in this case only of a
duty and not causation. Obviously, no defendant can be
liable unless causation as well as breach of duty is proved.
See Borowski v. Von Solbric (1975), 60 Il. 2d 418, 423-24,
328 N.E.2d 301, 305; Mahr v. G.D. Searle & Co. (1979),
72 Tl. App. 3d 540, 563, 390 N.E.2d 1214, 1230-31. Also,
we are mindful that in personal injury and wrongful death
cases involving medical negligence, expert witnesses in the
same profession or field as the defendant are necessary
to hold the defendant liable. Thus, the liability of defen-
dants in medical negligence cases must be substantiated
by their own peers. See, e.g., Ill. Rev. Stat. 1985, ch. 110,
pars. 2-622, 2-1013 - 1018 (eff. Aug. 15, 1985). These are
telling points which militate against defendants’ specific
contentions.
Generally, the desirability in terms of public policy of
imposing or extending any duty relating to doctors, hospi-
tals and drug manufacturers must be determined by bal-
ancing dichotomous public concerns. The problem is to
balance the just claims of people who are injured as a
proximate cause of medical negligence and related causes
“against the public’s claim not to be victimized by need-
lessly swollen medical costs.” Editorial, Compromise on
malpractice, Chicago Tribune, June 8, 1985, § 1, at 10.
For the reasons that we have already discussed, we do not
believe that extending the duty that is involved here to
cover members of the general public will needlessly swell
medical costs. Rather, we believe that the public interest
requires that members of the general public be entitled to
full redress if they are injured as a proximate cause of the
failure of doctors, hospitals or drug manufacturers to ade-
quately warn of the adverse effects of drugs. Plainly, under
4la
a public policy analysis, concern for righteousness must be
focused on the members of the public who are injured and
suffer because of the medical negligence and related caus-
es, rather than on the doctors, hospitals and drug manu-
facturers who commit the medical negligence and related
wrongful acts that cause the injuries and suffering. The
victims, not the wrongdoers, need protection. The wrong-
ful acts must be curtailed, not the rights of the victims of
the wrongful acts.
The hospital makes the additional argument that it
cannot be liable for negligence here because the adminis-
tration of drugs involves the decision to treat a patient in
a particular manner, which is a medical question entirely
within the discretion of the treating doctor, and the doc-
tors were “neither employed nor controlled by the hospi-
tal.” This argument is misapplied because the negligence
count against the hospital involves the hospital’s own neg-
ligence for failure to warn, rather than a claim that the
medical treatment itself was improper.
Moreover, the old conception that a hospital does not
undertake to treat the patient no longer reflects reality.
Plainly, hospitals do far more than merely furnish an
edifice for treatment. Rather, they regularly employ on
a salaried basis a staff of physicians, nurses, pharmacists,
technicians, and medical administrative professionals, and,
not insignificantly, the costs for these personnel are fac-
tored into the amount that patients are charged by the
hospital. See Darling v. Charleston Community Memorial
Hospital (1965), 33 Tl. 2d 326, 332, 211 N.E.2d 253, 257.
Also, hospitals now advertise and promote the treatment
and care that patients receive at their particular hospital
(see, e.g., Chicago Sun-Times, June 30, 1985, Medical Cen-
ters - Special Puilout Section), and it is not uncommon for
members of the general public to choose a particular hos-
pital for treatment and care simply on the basis of the rep-
utation of the hospital itself. It follows that hospitals must
42a
assume certain responsibilities for the care and treatment
of their patients. See Darling, 33 Tl. 2d at 332, 211 N.E.2d
at 257. Within this context, we conclude that before a
patient is discharged from a hospital, the hospital has a
duty to warn the patient of the adverse effects of drugs that
were administered by the hospital if the hospital knows or
should know that the drugs will impair the patient’s men-
tal or physical abilities, or will be potentially dangerous
in combination with particular foods, beverages or other
drugs.® A patient should not be discharged from a hospital
under circumstances which make the patient unknowingly
a potential danger to himself or herself, and the public at
large, because of drugs administered by hospital personnel.
Here, we should bear in mind that the patient is charged
by the hospital for both the services of the hospital person-
nel who administered the drugs as well as for the drugs
themselves‘ and that the duty arises only when the hos-
pital knows or should know of the adverse effects of the
drugs.
We therefore conclude that each of the defendants
owed a legal duty to the plaintiff as stated in this opinion.®
Whether defendants breached their respective duties is to
be determined by the trier of fact.
3’The hospital is not absolved from responsibility merely
because the attending physician has the same responsibility. To
illustrate, in Darling, the court stated: “At that point it became
the nurses’ duty to inform the attending physician, and if he
failed to act, to advise the hospital authorities so that appropri-
ate action might be taken.” 33 Ill. 2d at 333, 211 N.E.2d at 258.
“We presume that these costs are either factored into the
patient’s hospital bill or that they appear expressly on the bill
itself.
5The duty of each defendant to warn is nondelegable. To illus-
trate, the negligent failure of the doctors to learn of the risks of
the drugs from sources other than the drug manufacturers would
(Footnote con::nued on the following page)
4
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ad
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xe
.
=
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43 a
Next, the hospital makes the argument that it cannot
be liable under the doctrine of strict liability for failure
to warn of the adverse effects of drugs that it administers
because it simply provides a service in that regard. The
hospital’s argument would have merit if this case involved
injurious results of treatment (see Greenberg v. Michael
Reese Hospital (1980), 83 Ill. 2d 282, 289, 415 N.E.2¢ 390,
393) or danger created by the medical decision to admin-
ister the drugs (see Dubin v. Michael Reese Hospital &
Medical Center (1980), 83 Ill. 2d 277, 281, 415 N_E.2d
350, 352), rather than the unriasonably dangerous condi-
tion of the drugs themselves if ‘no warning of the adverse
effects is given to the patient. Compare Cunningham v.
MacNeal Memorial Hospital (1970), 47 Tl. 2d 443, 447-53,
266 N.E.2d 897, 899-902. Here, all of the elements for
a product liability action have been sufficiently alleged:
the case involves a product, i.e., drugs; the hospital was
within the distribution chain of the product;® the product
was unreasonably dangerous without adequate warning of
its adverse effects; the hospital knew or should have known
of the unreasonably dangerous condition; the unreasonably
dangerous condition existed at the time the product left the
hospital’s control; and the unreasonably dangerous condi-
tion of the product, i.e., the failure to warn, was a proxi-
mate cause of plaintiff’s injuries. Thus, this is a classic
product liability case if the alleged facts are proved. See
Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 402
N.E.2d 194; Cunningham, 47 Il. 2d 443, 266 N.E.2d 897;
Mahr v. G.D. Searle & Co. (1979), 72 Tll. App. 3d 540,
5 (Continued)
not relieve the drug manufacturers of liability for harm resulting
from their own failure to adequately warn. See Mahr, 72 Ill.
App. 3d at 566, 390 N.E.2d at 1233. See also n.3, supra.
®On this point, we note that hospitals charge patients for the
drug. that they dispense. Thus, a sale is involved, and the
hospital is clearly within the distribution chain of the product.
Cunningham, 47 Ill. 2d 443, 447-53, 266 N.E.2d 897, 899-902.
44a
559-60, 390 N.E.2d 1214, 1228-29. We see no good reason
for engrafting an exception in favor of hospitals onto the
strict tort liability theory, which in effect, is what the hos-
pital would have us do. Cunningham, 47 Ill. 2d at 452, 266
N.E.2d at 902. The hospital’s argument has no merit.
Finally, we address the hospital’s argument that the
product liability count against it must be dismissed pur-
suant to Ill. Rev. Stat. 1983, ch. 110, par. 2-621. The
statute provides for the dismissal of defendants other than
manufacturers in product liability actions under certain
circumstances. However, the statute applies only to causes
of action accruing on or after September 24, 1979. (In
the present case, plaintiff was injured on August 1, 1978.)
Thus, the hospital’s argument is baseless.
Accordingly, we hold that each defendant owed a duty
to warn as stated in this opinion and that the duty implic-
itly extended to cover plaintiff and other members of the
general public. Therefore, the counts against the respec-
tive defendants in the third amended complaint sufficiently
state a cause of action. The dismissals are reversed, and
the case is remanded for further proceedings.
REVERSED and REMANDED.
WHITE, P.J., concurs.
McNAMARA, J., dissents.
4
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a
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*
5
45a
McNAMARA, J., dissents.
I respectfully dissent with the majority’s conclusion
that defendants owe a duty to a plaintiff who was not a
patient, did not use the prescribed drug, and whose injury
was not reasonably foreseeable. The majority’s extension
of tort duty to such a remote party will unduly burden the
health care industry and its professionals and is, therefore,
contrary to public policy. Thus, I would affirm the trial
court’s dismissal of the counts against the physicians, hos-
pital and drug manufacturers.
Illinois courts have not allowed a non-patient, non-
user of a drug to assert a negligence or strict product lia-
bility action for failure to warn the patient or consumer
of the drug about adverse effects. The tort rationale for
imposing liability on a particular defendant is based on a
duty analysis. (Martin v. Kiendl Const. Co. (1982), 108 Tll.
App.3d 468, 438 N.E.2d 1187.) The concept of duty is:
ee ce
a question of whether the defendant is under
any obligation for the benefit of the particular
plaintiff ***.’ This question, ie., whether the
defendant and the plaintiff stood in such a rela-
tionship to one another that the law imposed upon
the defendant an obligation of reasonable conduct
for the plaintiff’s benefit, is one of law for deter-
mination by the court.”
(Cunis v. Brennan (1974), 56 Ill.2d 372, 308 N.E.2d 617,
quoting Prosser, Torts §53, at 324 (4th ed. 1971).) Gener-
ally, the creation of a legal duty requires that the occur-
rence involved must have been reasonably foreseeable; it
requires more than a mere possibility of occurrence. (Cunis
v. Brennan.) Courts have denied liability for negligence
to an unforeseeable plaintiff (Palsgraf v. Long Island R.R.
Co. (1928), 248 N.Y. 339, 162 N.E. 99), or an unforesee-
able occurrence (Mieher v. Brown (1973), 54 Tll.2d 539, 301
N.E.2d 307), and have not allowed a strict product liability
by an unforeseeable plaintiff for an unforeseeable occur-
46a
rence (Winnett v. Winnett (1974), 57 I11.2d 7, 310 N.E.2d
1.) Although questions of foreseeability are ordinarily for
the jury to decide, where the facts alleged in a complaint
on their face demonstrate that the plaintiff would never
be entitled to recover, the complaint is properly dismissed.
Winnett v. Winnett.
The negligence counts in the present complaint allege
that Daniel McCarthy’s physicians, Drs. Tracer and Fine,
and Michael Reese Hospital and Medical Center prescribed
certain drugs to McCarthy without adequate warning
which directly resulted in plaintiff’s injury. In order for
a duty to be imposed, the doctors and hospital should
- have reasonably foreseen that McCarthy would: a) be dis-
charged from the hospital that day; b) consume an alco-
holic beverage; c) operate a motor vehicle; d) pick up
plaintiff as a passenger; e) drive in a careless manner or
with his mental capabilities and physical reactions dimin-
ished; and f) collide with a tree. It seems clear that the
events leading to plaintiff’s injury are indirect and uncon-
nected to the alleged negligence of the doctors and hospital.
See Van Skike v. Zussman (1974), 22 Ill. App.3d 1039, 318
N.E.2d 244.
Although our supreme court has recognized a tort duty
to one who is unknown and remote in time and place, this
duty is limited by considerations of the nature of the rela-
tionship between the parties as well as the foreseeability
of the injury (Renslow v. Mennonite Hosp. (1977), 67 T1l.2d
348, 367 N.E.2d 1250.) In Renslow, the court defined duty
as “an expression of the sum total of those considerations of
policy which lead the law to say that the particular plain-
tiff is entitled to protection” (67 I1].2d 348, 356), and noted
at p. 357 that the law recognizes only “a limited area of
transferred negligence.” In other words, absent a special
relationship or foreseeable injury, negligence or breach of
duty as to one person which ultimately and in fact injures
another to whom no duty is owed is not negligence as to
®
7
47a
the latter person. Palsgraf v. Long Island R.R. Co. See
Martin v. Kiendl Const. Co.
It is my belief that this court should not make the
policy decision to transfer the duty owed to the patient and
consumer of the drug to the general public. To do so would
extend liability of defendants to an indeterminate class for
an indeterminate time in an indeterminate amount. (See
Ultramares Corp. v. Touche (1931), 255 N.Y. 170, 174 N_E.
441). Our supreme court has carefully circumscribed the
limits of transferred negligence to one intimately related
individual in Renslow v. Mennonite Hosp. (infant unborn
at the time of alleged negligence to mother), and a well-
defined class in Rozny v. Marnul (1969), 43 Ill.2d 54, 250
N.E.2d 656, (purchasers or lenders who might foreseeably
use a plat that was negligently surveyed for a third party.)
The majority recognizes that it is extending the duty
to warn of adverse drug effects to the general public, but
asserts that this burden on defendants is outweighed by
the risks to the general public. The majority fails to
acknowledge, however, that the potential liability is over-
whelming. The imposition of tort liability upon doctors
and hospitals to any person who may be injured by their
patients will produce a “chilling effect” on drug therapy
for psychiatric patients. The existence of such a legal obli-
gation would require intimate and constant surveillance
and would discourage doctors and hospitals from treating
patients with medications which can be beneficial. (See
Lance v. Senior (1967), 36 [ll.2d 516, 224 N.E.2d 231.) The
heavy burden sought to be imposed on defendants is not
outweighed by the risks to the general public, and sound
policy considerations militate against that imposition of
tort duty here.
Furthermore, the negligence count against Michael
Reese is deficient because it does not allege that a hospi-
tal breached a recognized duty to the patient McCarthy,
resulting in plaintiff’s injury. There can be no transferred
48a
duty to a non-patient where there is no duty to warn the
patient. A hospital may be liable for injuries suffered by a
patient under its care on two distinct theories. (/ngram v.
Little Company of Mary Hosp. (1982), 108 Ill. App.3d 456,
438 N.E.2d 1194.) The hospital may be liable both for its
physician-agent’s misconduct on a respondeat superior the-
ory or for a violation of an independent duty owed by the
hospital to review and supervise medical care administered
to a patient. Darling v. Charleston Community Memorial
Hosp. (1965), 33 [1l.2d 326, 211 N.E.2d 253, cert. denied
(1966), 383 U.S. 946; Johnson v. St. Bernard Hosp. (1979),
79 Ill. App. 3d 709, 399 N.E.2d 198.
There is no allegation that the physicians who pre-
scribed the drugs to McCarthy were agents or employees
of Michael Reese. Nor does the complaint allege that the
agents or employees of Michael Reese negligently adminis-
tered the drugs to McCarthy. Rather, plaintiff alleges that
Michael Reese prescribed certain drugs to McCarthy with-
out. adequate warning to him. The decision to prescribe
certain drugs is within the discretion of the treating physi-
cian. (Mahr v. G.D. Searle & Co. (1979), 72 Ill. App.3d
540, 390 N.E.2d 1214.) Consequently the duty to warn the
patient of adverse drug effects is owed by the physician,
not the hospital. Where a negligence complaint against
a hospital merely alleges matters within the duty of care
owed by the treating physicians, it is properly dismissed.
Pickle v. Curns (1982), 106 Ill. App.3d 734, 435 N.E.2d
877.
With respect to the strict product liability claims
against the drug manufacturers, E. R. Squibb & Sons, Inc.
and Smithkline Corp., and Michael Reese, the complaint
is likewise deficient. In a “failure to warn” strict product
liability action, [t]he product is in a ‘defective condition
unreasonably dangerous’ (Restatement (Second) of Torts,
sec. 402A (1965)), not because of some defect inherent in
the product itself, but because of the absence of an ade-
49a
quate warning accompanying the product.” (Woodhill v.
Parke Davis & Co. (1980), 79 Ill.2d 26, 30, 402 N.E.2d
194.) It is the general rule that the manufacturer of pre-
scription drugs has the duty to communicate a warning of
potential hazards to the physicians, not to the patient, con-
sumer or the general public. (See Stevens v. Parke, Davis
& Co. (1973), 9 Cal.3d, 51, 507 P.2d 653.) The rationale
for the foregoing rule is that the physician is the “learned
intermediary” who decides to treat the patient with a parti-
cular drug and it would be virtually impossible for a man-
ufacturer to warn the patient or general public directly.
Carmichael v. Reitz (1971), 17 Cal. App.3d 958, 95 Cal.
Rptr. 381.
The present complaint alleges that defendants drug
companies and hospital manufactured or supplied a prod-
uct which “failed to contain adequate warnings of danger-
ous propensities.” Plaintiff does not charge that defendants
failed to adequately warn the treating physicians. Thus
plaintiff’s complaint fails to allege the breach of one duty
that Dlinois courts have recognized as a valid failure to
warn product liability claim against a manufacturer. Nor
does plaintiff allege facts to justify the legal conclusion that
the warnings were inadequate, such as failure to warn the
physician that a drug consumer should not use alcoholic
beverages and then drive. (See Friederich v. Board of Edu-
cation (1978), 59 Ill. App.3d 79, 375 N.E.2d 141.) Where
a complaint fails to allege facts sufficient to set forth the
essential elements of a cause of action, it is properly dis-
missed. Jones v. Eagle II (1981), 99 Ill. App.3d 64, 424
N.E.2d 1253.
Additionally, the hospital does not have an indepen-
dent duty to warn the physician or patient. The treating
physician receives the information from the drug compa-
nies or from his own sources and exercises the professional
judgment to prescribe a certain drug. (Mahr v. G.D. Searle
& Co.) Although the hospital is in the chain of distribution
50a
of the product, the physician directs the hospital to supply
the drug to the patient. Therefore, the physician’s role in
the course of supplying the drug from the manufacturer to
the patient insulates the hospital from strict tort liability.
See Jones v. Irvin (S.D. Til. 1985), 602 F. Supp. 399; Ullman
v. Grant (1982), 114 Misc.2d 220, 450 N.Y.S.2d 955.
Moreover, in Winnett v. Winnett (1974), 57 111.2d 7, 310
N.E. 2d 1, our supreme court has limited the scope of a
manufacturer’s liability to a non-user under a strict prod-
uct liability theory. There, at p. 11, the court stated that
“the liability of a manufacturer properly encompasses only
those individuals to whom injury from a defective product
may reasonably be foreseen.” As with negligence actions,
foreseeability is measured by what is objectively reason-
able to expect, not merely what might conceivably occur.
It was not objectively reasonable for the manufacturers to
anticipate that a psychiatric patient treated by individual
physicians in a hospital would be discharged from the hos-
pital, consume alcoholic beverages, drive a vehicle in which
plaintiff was a passenger, and collide with a tree, injuring
plaintiff. Since plaintiff’s injury was not reasonably fore-
seeable and the manufacturers and hospital have no duty
to warn a non-patient, non-user of a prescription drug, the
trial court properly dismissed the strict product liability
counts. See Bobka v. Cook County Hosp. (1981), 97 Il.
App.3d 351, 422 N.E.2d 999.
As with the negligence counts, strong public policy
considerations preclude the imposition of strict liability on
the drug manufacturers and hospital in this instance. One
of the principal reasons for the rule of strict liability in tort
is the “public interest in human life and health.” (Suvada
v. White Motor Co. (1965), 32 111.2d 612, 619, 210 N.E.2d
182.) It has been recognized that in certain cases the pro-
tection of human life and health would not be enhanced,
but would be diminished by the imposition of strict liabili-
ty. (Greenberg v. Michael Reese Hosp. (1980), 83 T11.2d 282,
5la
415 N.E.2d 390. See Restatement (Second) of Torts, Sec.
402A, comment k (1966).) If strict tort liability is extended
to non-users of prescription drugs, the potential costs to
the drug manufacturers will outweigh the efficacy of pro-
ducing and selling them. The public may be deprived of
effective drugs and medications beneficial to the treatment
of disease. Therefore, the public interest in human life and
health demands that the drug manufacturers not be held
liable to non-users of prescription drugs.
Similarly, strict liability should not be imposed on the
hospital which supplies the drugs to the patient. “[I]n cases
which deal with the conduct of individuals or institutions
which themselves are pledged to protect human life and
health, precautions must be taken to avoid an ultimate
diminution of protection.” (Greenberg v. Michael Reese
Hospital.) In Greenberg, the court held that a hospital,
as a provider of medical services, cannot be sued in strict
liability in tort for an alleged failure to warn of the dan-
gerous effects of x-ray radiation treatments administered
by the hospital. Public policy dictates that the hospital
not be held strictly liable in tort for supplying prescription
drugs to a patient who later injures a nonpatient who did
not consume the drug.
Since I believe that the trial court properly denied
plaintiff’s motion for leave to file a fourth amended com-
plaint, which incidentally was not furnished to the trial
court, I would affirm the judgment of the trial court.
52a
(1) Orders Appealed From
(a) Order of May 20, 1981 (R. 545)
“This cause coming on to be heard upon the motion
of Defendant, Dr. Tracer, to dismiss Plaintiff’s Complaint
and upon Motion of Defendant, Dr. Fine for Judgment on
the Pleadings, the court having heard the arguments of
counsel, being fully advised in the premises, due notice
having been given:
“It Is Hereby Ordered that:
“Defendant Dr. Tracer’s Motion to Dismiss is hereby
sustained and granted with prejudice.
“Defendant Dr. Fine’s Motion for Judgment on the
pleadings is hereby sustained and granted with prejudice.
“It Is Further Ordered that the pending motion for an
in camera inspection of certain documents presented on
behalf of Dr. Fine is continued generally.” (R. 545)
(b) Order of September 3, 1981, (R. 661)
“This matter coming on to be heard upon the motion to
dismiss of E. R. Squibb & Sons, Inc. and Smithkline Clin-
ical Laboratories, Inc. and the parties having filed mem-
orandum, presented oral arguments and the Court being
fully advised in the premises,
“It Is Hereby Ordered:
“1. The motion to dismiss of E. R. Squibb & Sons,
Inc. and Smithkline Clinical Laboratories, Inc. are granted
with prejudice;
“2. There is no just reason for delaying enforcement
or appeal.
“3. Plaintiff’s oral requests made this date to make
this order of dismissal without prejudice and for leave to
file a fourth amended complaint is denied.
“4. Plaintiff's motions to strike Squibb’s and
Smithkline’s motions to dismiss are denied.” (R. 661)
53a
(c) First Order Of September 4, 1981, (R. 662)
“This cause coming on to be heard, all parties being
present and the court being fully advised in the premises,
“It Is Hereby Ordered That:
“1. Plaintiff’s motion to vacate the order of May 20,
1981, which dismissed Count II of plaintiff's Third
Amended Complaint as to Dr. Hlenry K. Fine is denied.
“2. It is further ordered that:
(a) As to Defendant Fiine, the order of May 20,
1981, was final.
(b) Today’s order denyimg vacation of the May 20,
1981 order is final and appealable as to Defendant
Fine.
(c) Plaintiff’s oral motiion of Sept. 3, 1981 to the
order of May 20, 1981, to be without prejudice and to
modify allow plaintiff to file an amended pleading is
denied in exercise of the court’s discretion.
(d) Plaintiff’s oral mottion of Sept. 3, 1981, for
leave to file an amended complaint is denied.
(e) The basis for this Court’s orders herein is that
none of the four complaints already filed by plaintiff
has differed as to the languiage of the warnings given.
No duty [sic. ____., illegible] [has been shown?] as to
the plaintiff on the part of Dr. Fine under the facts
alleged in any of plaintiff’s complaints.” (R. 662)
(d) Second Order Of September 4, 1981 (R. 663
On the same day (September 4, 1981) the following
order was also entered:
“This cause coming on to be heard on the Motion of
Michael Reese Hospital and Medical Center to dismiss
Counts I, [V and V of the plaintiff’s Third Amended Com-
plaint against Michael Reese Hospital and Medical Center,
due notice having been given and the Court being fully
54a
advised in the premises;
“It is hereby ordered that said motion of Michael
Reese Hospital and Medical Center to dismiss counts
I, IV and V of plaintiff’s Third Amended Complaint is
hereby granted and counts I, IV and V of plaintiff’s
Third Amended Complaint are hereby dismissed as against
Michael Reese Hospital and Medical Center with preju-
dice and [sic. illegible] (sic. and plaintiff’s motion to
make (?)] said dismissal without prejudice and for leave to
file a Fourth Amended Complaint as to Counts I, IV and
V against Michael Reese Hospital and Medical Center is
hereby denied in the exercise of the court’s discretion as
all complaints thus far filed against Michael Reese Hospi-
tal and Medical Center have failed to allege any facts giv-
ing rise to a duty on the part of Michael Reese Hospital
and Medical Center to the plaintiff and plaintiff has not
tendered a fourth amended complaint to the court.
“It is further ordered that this court finds no just rea-
son to delay enforcement of or appeal from this order.”
(R. 663)
(e) Third Order Of September 4, 1981 (R. 664)
“This cause coming on to be heard on motion of plain-
tiff for rehearing to vacate the court’s order of 5/20/81
dismissing plaintiff’s complaint in reference to defendant
Tracer and granting defendant’s motion to dismiss the
Third Amended Complaint, the court having considered
the memoranda of law filed by the parties, the court having
heard oral arguments by both parties:
“The Court hereby finds and orders that
(1) Plaintiff’s motion to vacate order of 5/20/81 is
Denied because all factual allegations made by plaintiff did
not give rise to duty to Kirk from Tracer.
(2) Plaintiff’s oral motion on 9/3/81 to amend order of
5/20/81 to be without prejudice and to amend complaint
is denied in the exercise of court’s discretion because al]
55a
factual allegations made by Plaintiff did not give rise to a
duty from Tracer to Kirk and no 4th Amended Complaint
was tendered.
3. Plaintiff’s oral Motion of 9/3/81 to amend the com-
plaint is denied because order of 5/20/81 is final.
4. The court finds there is no just reason to delay
enforcement or appeal of this order.” (R. 664)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.