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Kirk v. Michael Reese Hosp. & Med. Ctr

OPINION FILED AUGUST 28, 1985.

JAMES D. KIRK, PLAINTIFF-APPELLANT,

v.

MICHAEL REESE HOSPITAL AND MEDICAL CENTER ET AL., DEFENDANTS-APPELLEES (DANIEL MCCARTHY, DEFENDANT).



Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 16, 1985.

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 I involves a negligence action against defendant Michael Reese Hospital and Medical Center; count II involves a medical negligence action against defendants Irving H. Tracer, M.D., and Henry K. Fine, M.D., both of whom are psychiatrists; count III involves a separate medical negligence action against defendant Tracer; count IV involves a product liability action against defendant Michael Reese Hospital and Medical Center and defendant E.R. Squibb & Sons, Inc.; and count V involves a product liability action against defendant Michael Reese Hospital and Medical Center and defendant SmithKline Clinical Laboratories, Inc. In count II, plaintiff alleges that Tracer acted as the agent of Fine. Count VI, which involves a negligence 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, manufactured by Squibb & Sons, and the prescription drug Thorazine, manufactured by SmithKline. Hospital personnel then injected McCarthy with Prolixin Decanoate and gave him Thorazine for oral consumption. On the same day, McCarthy was discharged from the hospital. He then consumed an alcoholic beverage and drove his automobile with plaintiff as a passenger. The drugs Prolixin Decanoate and Thorazine diminished McCarthy's mental and physical abilities, which caused McCarthy to lose control of the automobile. As a result, the automobile hit a tree. Plaintiff suffered severe and permanent injuries in the occurrence.

The gist of plaintiff's actions is that the drug manufacturers failed to provide adequate warnings of the adverse effects of their drugs, and that the doctors and the hospital failed to warn their patient prior to his discharge from the hospital that the drugs would impair the patient's mental and physical abilities, although defendants knew or should have known of the adverse effects of the drugs.

Defendants argue separately that they were properly dismissed because they owed no duty to plaintiff. As we view the case, whether the separate defendants owed a duty to plaintiff can be discussed as a single issue.

• 1 The existence or nonexistence of a legal duty is a question of law to be determined by the court. This is so because the existence of a legal duty is not a palpable fact, but merely a legal conclusion that in certain generalized circumstances redress should be available to those who are injured as a proximate cause of either the acts or inactions of another. The broad factors to be considered in making this determination include (1) the foreseeability that the defendant's acts or inactions will result in injury to the plaintiff, (2) the magnitude of the burden of guarding against the injury and the consequences of placing that burden upon the defendant, and (3) the desirability in terms of public policy of imposing a duty on the defendant to guard against the risk that is involved. See Renslow v. Mennonite Hospital (1977), 67 Ill.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.

• 2-4 With regard to the question of whether it was foreseeable that defendants' failure to warn *fn1 would result in injury to plaintiff, we apply a standard of objective reasonableness. Under this standard, it is not essential that defendants should have foreseen the precise hazard or exact consequences which resulted from a failure to warn, nor is it essential that defendants should have foreseen the injuries to a specific person. A duty may exist to one who is unknown and remote in time and place. (See Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 357, 367 N.E.2d 1250, 1254-55; Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380, 50 N.E.2d 497, 503; Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 103, 197 N.E. 578, 582; Orrico v. Beverly Bank (1982), 109 Ill. App.3d 102, 107, 440 N.E.2d 253, 257.) With these considerations in mind, we believe that the event that occurred was sufficiently foreseeable for the doctors, hospital and drug manufacturers to have known that their failure to adequately warn of the adverse effects of the drugs would result in injury to the plaintiff or other members of the general public.

• 5, 6 Defendants argue that what occurred in this case was not reasonably foreseeable because McCarthy's consumption of an alcoholic beverage and his negligent driving constitute superseding intervening causes of the occurrence. A superseding intervening cause is a subsequent independent action which breaks the causal relationship between the original wrong and the injury, and it, rather than the original wrong, causes the injury. However, the intervention of an independent action will not break a causal connection if the intervention of the independent action was itself reasonably foreseeable. (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380-81, 50 N.E.2d 497, 503-04; Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 104, 197 N.E. 578, 583; Orrico v. Beverly Bank (1982), 109 Ill. App.3d 102, 107, 440 N.E.2d 253, 257.) In the present case, McCarthy's consumption of an alcoholic beverage, the manner of his driving and plaintiff's presence in the automobile were all within the realm of reasonable foreseeability absent a pertinent warning by the respective defendants. Thus, defendants' argument on this point is without merit.

• 7 We next address the magnitude of the burden of guarding against an injury to a member of the general public because of a failure to adequately warn of the adverse effects of prescription drugs and the consequences of placing that burden upon doctors, hospitals and prescription drug manufacturers. The doctors and the hospital argue that they should not owe a duty to an injured party who is merely a member of the general public and not their patient, because the imposition of a duty to a nonpatient 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. *fn2 We do not find defendants' arguments persuasive.

• 8 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 manufactrurers have a duty to warn the medical profession of the adverse effects of their drugs, and that these duties 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 an undue burden to place upon doctors, hospitals and drug manufacturers in light of the great risks that are involved to every member of the public. In a balancing test, the rights and burdens of the members of the public whose injuries are proximately caused by the failure of doctors, hospitals and drug manufacturers to adequately warn of the adverse effects of drugs substantially outweigh the added burden to doctors, hospitals and drug manufacturers to be fully responsible for their wrongdoing. Additionally, the imposition of a pertinent duty to warn that implicitly extends to cover the general public would not make doctors, hospitals or drug manufacturers any more liable to an indeterminate class than are those in other fields and professions when a member of the general public is injured as a proximate cause of their wrongful acts or inactions. Finally, nothing in the record demonstrates that there would be a quid pro quo for society in return for the absolution of doctors, hospitals or manufacturers from their responsibility to the public for their failure to warn of the adverse effects of drugs. We therefore see no reason to discriminate in favor of doctors, hospitals or drug manufacturers at the expense of innocent victims.

• 9, 10 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 medical negligence suits by an infinite class of plaintiffs and that it would make them absolutely liable. These contentions miss the point.

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 nonjudgmental. 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 Solbrig (1975), 60 Ill.2d 418, 423-24, 328 N.E.2d 301, 305; Mahr v. G.D. Searle & Co. (1979), 72 Ill. 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 defendants in medical negligence cases must be substantiated by their own peers. (See, e.g., Ill. Rev. Stat. 1983, ch. 110, pars. 2-622, 2-1013 through 2-1018 (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, hospitals and drug manufacturers must be determined by balancing 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 needlessly swollen medical costs." (Editorial, Compromise on malpractice, Chicago Tribune, June 8, 1985, sec. 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 adequately warn of the adverse effects of drugs. Plainly, under 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 causes, rather ...


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