The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Heidi and Kent Happel brought this action against defendant
Wall-Mart Stores, Inc. d/b/a Wal-Mart Pharmacy (Wal-Mart) alleging
negligence, loss of society, willful and wanton misconduct and battery.
On February 3, 2004, this court entered an order denying defendant's
motion to dismiss counts III and IV. Defendant now seeks to clarify that
order by striking part of count HI, and renews its motion to dismiss
count IV. For the following reasons, defendant's motion to clarify is
granted, its motion to strike is granted, and its motion to dismiss is
Plaintiffs allege that defendant's employees filled a Toradol
prescription for Heidi while knowing that she was allergic to
non-steroidal anti-inflammatory drugs (NSAIDs). They claim that the
employees intended to cause harm to Heidi and that, as a result of taking
the drug, she suffered severe, long-term medical problems.*fn1
Defendant's motions to clarify and strike concern plaintiff's desire to
seek punitive damages. As the court has heretofore stated, the Illinois Civil Code of
Civil Procedure and Healing Arts Malpractice Act (HAMA) protects certain
defendants from punitive damages for malpractice. 735 ILCS 5/2-1115. A
plaintiff may however seek punitive damages for an intentional tort by
such a defendant Grant v. Petroff, 684 N.E.2d 1020, 1027 (Ill.App.5th
Plaintiffs originally attempted to state a claim for "intentional
misconduct," which we determined was not a specific intentional tort
under Illinois law. While dismissing that claim without prejudice on July
2, 2003, we recognized that HAMA and state court decisions strictly limit
the situations in which a plaintiff may seek punitive damages for an
intentional tort while simultaneously claiming malpractice. A plaintiff
must allege an intentional tort other than malpractice. We stated in our
February 3, 2004 order that the threshold for proving willful and wanton
misconduct is somewhat lower than intentional harm. See Burke v. 12
Rothschild's Liquor Mart, Inc., 593 N.E.2d 522, 531 (Ill. 1992)(citing
the Restatement (Second) of Torts § 500, Comment g, finding that the
standard is essentially the same as recklessness somewhere above
negligence). To the extent that count III simply alleges reckless
malpractice, HAMA prohibits the awarding of punitive damages, even for
willful and wanton misconduct a claim for which punitive damages are
ordinarily awarded. Id. at 532. And they are awarded because willful and
wanton conduct is qualitatively different from simple negligence. Willful
and wanton conduct may justify punitive damages, but it is not, however,
an independent tort, so far as we know.
Plaintiffs allege that defendant's conduct crossed a line, where it
effectively ceased to be malpractice and was instead an intentional tort,
at which point plaintiffs may seek punitive damages. See Grant, 684 N.E.2d at 1027. This is the point where
plaintiffs' allegations cease to be of willful and wanton misconduct and
become battery. Plaintiffs cannot therefore seek punitive damages for
count III (though they may continue to pursue the claim as a species of
malpractice), and the corresponding prayer for relief is stricken.
Defendant also renews its motion to dismiss count IV, arguing that the
alleged facts do not support a battery claim.*fn2 To state such a
claim, a plaintiff must allege that the defendant intended to cause a
harmful contact, that harmful contact resulted and that the plaintiff did
not consent Cohen v. Smith, 648 N.E.2d 329, 332 (Ill.App.5th Dist.
1995). The contact requirement may be met by showing that the defendant
caused the plaintiff to come into contact with a foreign substance in a
way that may reasonably be regarded as offensive. Mink v. University of
Chicago, 460 F. Supp. 713, 718 (N.D. Ill. 1978), quoting Restatement
(Second) of Torts § 18, Comment c at 31.
In Mink, the plaintiffs were administered diethylstilbestrol (DES) as
part of a study to determine DES' value in preventing miscarriages. 460
F. Supp. at 715. The plaintiffs did not know that they were being
administered the drug and claimed that it resulted in increased risks of
cancer to their children. Id. The court determined that, under Illinois
law, there are two distinct theories for malpractice cases resulting from
lack of consent to a procedure. Id. at 717. In the first type of case, a
plaintiff may claim negligence if the defendant fails to disclose adequate
information to allow the plaintiff to make a well-reasoned decision. Id.
at 718. In the second type, a plaintiff may state a claim for battery if
there is a complete absence of consent to the procedure. Id. The court held that Mink was of the second variety. Even though the
plaintiffs themselves Ingested the pills, they did not know they were
taking part in an experiment Id. at 718. The fact that they consented to
treatment for prenatal care did not give defendants the right to treat
them in any manner. Id. Instead, that consent was limited to acts that
were substantially similar to those to which there was actual consent
Id. Testing a new use for a drug went beyond those limits. Id.
In Moore v. Eli Lilly and Co., 626 F. Supp. 365, 366 (D. Mass. 1986),
plaintiffs claimed that they were harmed by defects in the arthritis drug
Oraflex. They claimed that the defendants fraudulently misrepresented
facts relating to the drug's defective nature. Id. In determining that
the plaintiffs could not state a claim for battery, the court
distinguished Mink by stating that the plaintiff could only show a lack
of informed consent Id. at 368. Because the patient was aware that he was
being given some form of a drug, he must rely on a negligence action.
Id., citing, Mink, 460 F. Supp. at 717.
While this court has not found any cases with facts identical to those
in this case, we believe that it is closer to Mink than to Moore.
Although Heidi actually ingested the Toradol knowing that she was taking
the medication, she had no idea that the defendant's employees allegedly
gave her a drug that effectively amounted to poison. If this claim is
true, the act completely lacked consent Heidi's allergy to NSAIDs was
different from a potential side effect of medication in that it was
virtually certain to cause her harm. Plaintiffs are not claiming that
Heidi required more information to make her decision, but that defendant
should not have filled her prescription at all.
This is not a situation where a plaintiff merely suffered because of an
"undisclosed inherent complication with a low probability," lacking only some of the
information necessary to make an informed choice. See Mink. 460 F. Supp.
at 717, quoting, Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972). Instead,
plaintiffs allege that defendant actively set out to cause harm to Heidi.
While they bear a heavy burden in proving the necessary intent, if they
are able to do so, plaintiffs may be able to prevail on the claim for
battery and seek punitive damages for that intentional tort.
For the foregoing reasons, defendant's motion to clarify is granted,
its motion to strike is granted, and ...