Failure of a doctor to issue warnings about the side effects of medication can constitute negligence only with respect to injuries to the patient, but not to third parties, according to a decision by the Illinois Supreme Court handed down July 13.

Patient Daniel McCarthy received prescription drugs upon his discharge from Michael Reese Hospital. That same day he consumed alcohol, drove and had an accident in which plaintiff James D. Kirk was injured. Kirk claimed negligence on the part of the hospital and attending physicians, and liability on the part of the hospital and the manufacturers of the drugs.

Central to decisions in the circuit, appellate and supreme courts was the doctrine of the "learned intermediary." This makes attending physicians, as possessors of specialized knowledge of their field and of an individual case, solely responsible for imparting to a patient necessary information about adverse effects of medications. Manufacturers use several different means to provide information about drugs to doctors. Since the doctors here had not warned the patient, the circuit court found them deficient in their duty to him but not to Kirk. It held that the manufacturers and the hospital had no duty to McCarthy and, therefore, none to third-party Kirk. The appellate court reversed, holding that failure to warn on the part of the manufacturers and hospital was the proximate cause of Kirk's injuries.

In this case of first impression the Illinois Supreme Court held that the "learned intermediary" absolved the manufacturers and hospital of any duty to the patient and thus much less to a third party. Neither defendant could foresee McCarthy's consumption of alcohol and the ensuing chain of events.

The court held that this absence of foreseeable consequences also absolved the attending physicians of any responsibility to third parties. Such a responsibility would exist only in the presence of a special relationship between doctor and patient (such as custody of a dangerous individual) or between patient and third party (such as a parent-child relationship). Furthermore, ''Such a broad duty extended to the general public would expand the physician's duty . . . to an indeterminate class of potential plaintiffs. Our General Assembly . . . has very recently enacted major medical malpractice legislation to reduce the burden of litigation against health care professionals."

Justice Seymour Simon's partial dissent concerned the majority position on the physicians, saying that it overlooked "primary elements of negligence which law students study during their first year." The doctors could have foreseen "that if the patient were unaware of the side effects of the drugs he might have a drink and drive" and "that such conduct could harm a passenger in his car." This would not unduly extend liability since "the doctors' potential liability extends only to the class of persons whose injury is so foreseeably great as to make the doctors' conduct negligent." Kirk, he said, had shown adequate cause for his action against the doctors for negligence.

Justice Daniel P. Ward wrote the opinion in Kirk v. Michael Reese Hospital (Docket Nos. 62700-04). Chief Justice William G. Clark and Justice Joseph H. Goldenhersh did not participate. 

F. Mark Sieben

32/October 1987/Illinois Issues