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Eldridge v. Eli Lilly & Co.

OPINION FILED NOVEMBER 5, 1985.

JAMES E. ELDRIDGE, INDIV. AND AS ADM'R OF THE ESTATE OF ANNA ELDRIDGE, PLAINTIFF-APPELLANT,

v.

ELI LILLY & COMPANY ET AL., DEFENDANTS (BROWN DRUG COMPANY, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Adams County; the Hon. Dennis K. Cashman, Judge, presiding.

JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

The plaintiff, James Eldridge, brought this action for the wrongful death of Anna Eldridge. The plaintiff's complaint alleged the death resulted from an overdose of drugs, including one commonly known as Darvon. The plaintiff sued Thomas Westerhoff, the physician who prescribed the drugs, Eli Lilly & Company, the manufacturer of the drug, and Brown Drug Company, which filled the prescriptions. The plaintiff alleged Brown Drug Company had been negligent in filling prescriptions for quantities of Darvon and other drugs beyond those normally prescribed and in failing to warn Dr. Westerhoff that the prescriptions were for an excessive quantity. The plaintiff appeals from the trial court's order granting Brown Drug Company's motion to dismiss. At issue is whether a pharmacist is under a duty to warn a physician that drugs are being prescribed in excessive quantities.

• 1 A pharmacist owes a duty of ordinary care in practicing his profession, but such care requires the highest degree of prudence, thoughtfulness and diligence, and it is proportioned to the danger involved. (Jones v. Walgreen Co. (1932), 265 Ill. App. 308.) In Jones, a pharmacist had difficulty understanding a prescription and filled it with a dangerous drug not indicated by the prescription. The court held that when it is doubtful as to what drug is intended, a pharmacist has a duty to take all reasonable precautions to avoid filling the prescription with the wrong drug. In the present case, the plaintiff does not allege that Brown Drug Company did anything other than fill the prescription as ordered by the physician.

No Illinois court has addressed the question of whether a pharmacist has a duty to warn a physician that drugs are being prescribed in an excessive amount. In Jones v. Irvin (S.D. Ill. 1985), 602 F. Supp. 399, however, the court decided Illinois law imposed no duty on a pharmacist to warn the customer or notify the physician that drugs are being prescribed in dangerous amounts, that the customer is being overmedicated or that various drugs in their prescribed quantities could have an adverse effect. The court reasoned:

"It is the duty of the prescribing physician to know the characteristics of the drug he is prescribing, to know how much of the drug he can give his patient, to elicit from the patient what other drugs the patient is taking, to properly prescribe various combinations of drugs, to warn the patient of any dangers associated with taking the drug, to monitor the patient's dependence on the drug, and to tell the patient when and how to take the drug. Further, it is the duty of the patient to notify the physician of the other drugs the patient is taking. Finally, it is the duty of the drug manufacturer to notify the physician of any adverse effects or other precautions that must be taken in administering the drug. [Citation.] Placing these duties to warn on the pharmacist would only serve to compel the pharmacist to second guess every prescription a doctor orders in an attempt to escape liability." (602 F. Supp. 399, 402.)

The court also noted the overwhelming majority of cases from other jurisdictions stood for the proposition that a pharmacist has no duty to warn. See, e.g., Pysz v. Henry's Drug Store (Fla. App. 1984), 457 So.2d 561; Batiste v. American Home Products Corp. (1977), 32 N.C. App. 1, 231 S.E.2d 269; People's Service Drug Stores, Inc. v. Somerville (1932), 161 Md. 662, 158 A. 12.

• 2-4 We find that Irvin decision to be sound. The drug manufacturer is under a duty to warn the doctor of any dangerous propensities of the drug. The doctor acts as a learned intermediary on behalf of the ultimate consumer. (Mahr v. G.D. Searle & Co. (1979), 72 Ill. App.3d 540, 390 N.E.2d 1214.) The physician must evaluate the patient's needs, assess the risks and benefits of available drugs, prescribe one and supervise its use. (Lindsay v. Ortho Pharmaceutical Corp. (2d Cir. 1980), 637 F.2d 87.) The plaintiff maintains many pharmacists may have greater knowledge of the propensities of drugs than physicians. He contends a pharmacist should, therefore, be under a duty to act as a safety supervisor and determine whether the physician has properly prescribed the drugs. The propriety of a prescription depends not only on the propensities of the drug but also on the patient's condition. A prescription which is excessive for one patient may be entirely reasonable for the treatment of another. To fulfill the duty which the plaintiff urges us to impose would require the pharmacist to learn the customer's condition and monitor his drug usage. To accomplish this, the pharmacist would have to interject himself into the doctor-patient relationship and practice medicine without a license.

The plaintiff contends his complaint sufficiently alleges the breach of a statutory duty. He notes the practice of pharmacy is regulated as a profession affecting the public health, safety and welfare. (Ill. Rev. Stat. 1983, ch. 111, par. 4001.) Plaintiff points to section 10 of the Pharmacy Practice Act, which provides, in pertinent part:

"Any person who sells or dispenses any drug, medicine or poison shall sell or dispense such drug, medicine or poison in good faith. `Good faith,' for purposes of this Section, has the meaning ascribed to it in subsection (v) of Section 102 of this `Illinois Controlled Substances Act,' approved August 16, 1971, as amended." (Ill. Rev. Stat. 1983, ch. 111, par. 4031.)

The "good faith" provision of the Illinois Controlled Substances Act states:

"`Good Faith' means the prescribing or dispensing of a controlled substance by a practitioner in the regular course of professional treatment to or for any person who is under his treatment for a pathology or condition other than that individual's physical or psychological dependence upon or addiction to a controlled substance, except as provided herein: and application of the term to a pharmacist shall mean the dispensing of a controlled substance pursuant to the prescriber's order which in the professional judgment of the pharmacist is lawful. The pharmacist shall be guided by the accepted professional standards including, but not limited to the following, in making that judgment:

(1) Lack of consistency of doctor-patient relationship,

(2) Frequency of prescriptions for same drug by one prescriber for large ...


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