THIRD DI VISI ON August 25, 2010

No. 1-09-1297 CHARLES S. DiGIOVA

NNI as Special Administrator ) of the Est ate of L averne

DiGiovan

ni, Deceased, ) Appeal from the ) Circuit Court of Plaintiff -Appella nt, ) Co ok Co un ty. ) v. ) No. 04 L 3580 ) ALB ERTSON’S, INC. , d/b/a Osc o Drugs , ) ) Honorab le Defendant-Appellee ) Daniel M. Locallo, ) Judge Presi ding. (Sachidananda D. Shastri and Gericare , Ltd., ) ) Defendants). ) JUSTICE STEEL E deliver

ed the opi nion of the

court: This appe al arise s from an order of the circ uit court d

ismissing defenda nt Albert son’s, Inc., d/b/a Osco Drug s (Osco), from a suit filed by plaintiff, Charles DiGiovanni, as special administrator of the estate of La verne DiGiovanni (the Estate), with prejudice on the basis that Osco had no duty to war

n either the physicia

n or the patient of a potential drug-to-drug interaction under

the lear ned inter mediary doctrine . For the

following

reasons , we aff

irm. BACKGROUND The decedent, La

verne DiGiovanni, was a longtime patient of defe ndant, Dr. Sachidan anda D. Shastri. F or 10 y ears, he had pres cribed l ithium to L averne for her probable manic de pressive psychosis. O n January

16, 2003, Dr. Shastr

i prescr ibed a dr ug call ed Tenor

etic to treat Laverne’ s high blood pressure. The prescription for the Te noretic was filled on January 20, 2003, at Osco. However, prior to filling the prescr iption, the pharmacist called Dr. Shastri.1-09-1297

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According to the pharmacist, Dr. Jonathan Huy nh, the pharmacy

computer indicated that there would be an i nterac tion betwe en lit hium and Ten oreti c. The i nterac tion betwe en the two dr ugs could cause lithium toxicity. When Dr. Huy nh called Dr. Shastri to inform him of the interaction, Dr. Shastri told Dr. Huy nh to fill the prescription and that he would monitor the patient. The conversation was memorialized in a note and placed in Laverne’s file. However, when Dr. Shastri was questioned during his deposition about a conversa tion with Dr. Huynh, he indicated that he had no recollection of the conversa tion. A prescription for lithium was subsequently issued by Dr. Shastri for L averne, which was filled on January 27, 2003, by another Osco pharmacist, John Glowacki. Prior to filling the prescription, Glowacki noticed the handwritten note in L averne’s file indicating that the doctor was going to monitor the patient after rec eiving notice of the interaction between lithium and Tenoretic. Glowacki did not call Dr. Shastri prior to filling the lithium prescription. L averne became ill and wa s subseque

ntly hospitalize d on Febr

uary 3, 2003. She

later die d, alleg edly from lithium toxicity. The Esta te filed a wrongf ul death a ction ag ainst his wife’s lon gtime do ctor, Dr . Shastri, Gericare, L

td. (Gericare), and Osco. The Esta te alleged, in part, that Osco failed to war n of the interaction between Tenoretic and lithium. Osco filed a motion for summary judgment, which was deni ed on Mar

ch 10, 200 8. The Est

ate subse quently

moved for

partial s ummary judgmen t, claiming there was a duty to warn on January 27, 2003, bef ore filling the lithium prescription and there was no dispute that a warning had not bee n issued on that date. The trial court ruled on June 17, 2008, that Osco’s duty to warn started to r un on January 20, 2003, and it was question of1-09-1297

3

fact for the jury

whether the warning on January 20, 2003, by Dr. Huy

nh to Dr. Shastri was sufficient to cover the refilling of the lithium prescription on January 27, 2003. On February

4, 2009, the case was docketed for a jury trial. Osco presented a motion in limine , alleging that it was under no duty to warn either the phy sician or the patient of a drug interaction. The trial court took Osco’s motion under advisement. The following day, Fe bruary 5, 2009, Dr. Shastri and Gericare were dismissed from the case pursuant to a settlement agreement. Subsequently , the trial court dismissed Osco from the case, reversing its ruling of June 17, 2008, and finding that Osco had no duty to warn under the learned intermediary doctrine and that Happel v. Wal-Mart Stores, Inc. , 199 Ill. 2d 179 (2002), was distinguishable. The tr ial court fil ed a writ

ten memor

andum opin

ion on Fe bruary 13, 2009, w

hich fur ther expla ined its ruling. The Estate’s motion for reconsideration was de nied. This timely appeal followed. DISCUSSION The issues raised on appeal are: (1) whe ther the trial court correctly held that the learned intermediary doc

trine did not require Osco to warn the customer of a potential drug interaction; and (2) w hether t he trial c ourt cor

rectly conclude d that Happel was distinguishable from the instant case. The order dismissing Osco from the suit was a reversal of the trial court’s initial ruling on Osco’s motion for summary judg ment. In an appeal fr

om the grant of summary judgment, we conduct a de novo review. Pekin Insurance Co. v. Estate of Gobe n , 303 Ill. App. 3d 639, 642 (1999). In reviewing

a grant of summary

judgment, this court considers anew the facts and the applicable law and determines whether the c ircuit court was correct in its ruling. Frigo v. Motors1-09-1297

4

Insurance Corp. , 271 Ill. App. 3d 50, 56-57 (1995). Although it is rec ognized that summary judgment is a drastic means of disposing of litigation, it is appropriate in ca ses where there is no genuine issue of material fact and the moving party is entitled to a judg ment as a matter of law. Pekin Insurance , 303 Ill. App. 3d at 642. The Estate first contends that the learned intermediary doctrine does not insulate Osco from its legal duty to wa

rn of a deadly

drug interaction. The learned interme diary doctrine provides that manufacturers of prescription drug s have a duty to wa rn prescribing phy sicians of the drugs’ known dangerous pr opensities, and the physicians, in turn, using their medical judgment, have a duty

to convey the wa

rnings to their patients. Kirk v. Michael Reese Hospital & Medical Center , 117 I ll. 2d 507, 5 17 (1987) ; Fakhouri v. Tay lor , 248 Ill. App. 3d 328, 330 (1993). As a result, the doctrine prevents imposing a duty upon drug manufacturers to warn patients directly. Kirk , 117 I ll. 2d at 51 9; Fakhouri , 248 Ill. App. 3d at 330. The doctrine has also been applied to exempt pharmacies and pharmacists from giving warnings to patients. See Eldridge v. Eli Lilly

& Co. , 138 I ll. App. 3d

124 (1985 ); Lee sley

v. West , 165 Ill. App. 3d 135, 137-38 (1 988); Fakhouri , 248 Ill. App. 3d at 332-33. In Eldri dge , plaintiff brought a wrongful death suit ag ainst the pharmacy that had filled the decedent’s prescriptions. Plaintiff charg ed the pharmacy with negligence in that it had filled the pres criptions

for quan tities of the drug

bey ond those n

ormally prescr ibed and had faile d to warn the decedent’s doctor that the presc riptions were for an excessive quantity . The decedent died from an overdose of the drug. Eldri dge , 138 Ill. App. 3d at 125-26. The appellate c ourt refuse d to impose

a duty to warn u

pon phar macists, n

oting tha t drug ma nufactu rers ha d a duty to1-09-1297

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warn doctors of the dangerous prope nsities of drugs and the doctor acts as a lear ned intermediary on behalf of the consumer. Eldri dge , 138 Ill. App. 3d at 127. Beca use the propriety of

a prescription depends not only on the propensities of the drug, but also on the patient’s condition, the cour t reasoned that to

impose suc

h a duty on pharma

cists woul d “requi

re the ph armacis t to learn the customer’s condition and monitor his [or her] drug use. To accomplish this, the pharmacist would have to interject himself into the doctor-patient relationship and pra ctice medicine without a license.” Eldri dge , 138 Ill. App. 3d at 127. Similarly, in Leesley, plaintiff filed suit against her doctor, a pharmac y, and a pharmaceutical company

for damages resulting from g astrointestinal bleeding allegedly caused by a presc

ription drug manufactured by the pharmaceutical company , prescribed by her doctor, and suppli ed by

the phar macy . Plaintiff

charg ed the pha

rmacy with neg ligenc e in that it failed to warn her of the drug’s possible adve rse side effects. Leesley, 165 Ill. App. 3d at 137. The appellate court refused to subject pharmac ists to liability for failure to give w arnings that were not reque sted by

the phy sician to b e given

to the pat ient, and noted tha t imposing

such a du

ty violated the learned intermediary doctrine. Leesley, 165 Ill. App. 3d at 142. Apply ing the doctrine, the appellate court found that it could not place a g reater burden on pharmacists than that which was pla

ced on the

drug’s manufacturer a

nd conclu ded that t he extent o f warnin

gs to patients concerning prescription drug s is within the discretion of the physician. Leesley, 165 I ll. App. 3d at 143. A similar conclusion was reached in Fakhouri . In Fakhouri , a wrongful death action was brough t again st pharma

cists who f

illed a pr escripti on that al legedl

y c aused the

customer to1-09-1297

1 The rec ord does n

ot indica te what ty pe of moni

toring w as done. Since the case ag ainst the physician was se

ttled, it is not a part of the discussion here.

6 overdose. Fakhouri , 248 Ill. App. 3d at 329-30. The court found that it was “ illogical and unreasonable” to impose a grea ter duty on the phar

macist who properly f

ills a prescription than that which is imposed on the drug’s manufacturer. Fakhouri , 248 Ill. App. 3d at 333. We reach the same conclusion based upon the circumstanc es presented by the case at bar. Here, Lave

rne’s longtime phy sician, Dr. Shastri, prescribed Tenoretic to treat hig h blood pressure while she was alre ady

taking l ithium for

manic de pression . The two d

rugs we re appa rently known to ha

ve a neg ative inte

raction , and the c omputer in dicated so when th e Tenor

etic prescription was being filled. The recor d indicates that the pharmacist called the physician prior to filling the prescription regarding the potential interaction, and the phy sician indicated that he would monitor Laverne. Making a notation in the file, the pharmacist filled the prescription for the Tenoretic. When the lithium prescription was refilled, the pharmacist saw the note regarding notification to the physician about the intera ction and that the physician would monitor the patient. 1 We find that the pharmacist properly filled the prescriptions that the physic ian wrote, took notic e of the w arning in the sy stem reg arding

a possible

interaction betwe en the two drugs, and notified the physician of the potential interaction prior to filling the prescription. The physician then indicated tha t he would monitor the usage, so the pharmacist filled the prescription and made a notation. Under these circ umstances, as in Eldri dge , Leesley, and Fakhouri , we find

that the p harmac ist was und er no duty to warn th e custome

r of the p ossible1-09-1297

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interaction betwe en the two drugs u nder the learne d interme diary

doctrine . To hold ot

herwise would impose a greater duty on the pharmacist than on the drug’s manufacturer, as the duty of extending warnings to patients concerning prescription drugs belongs with phy sicians. The Esta te, howe ver, con tends tha t the tria l court e rroneou sly

found the

holding i n Happel v. Wal-Mart Stores, Inc. , 199 Ill. 2d 179 (2002), was distinguishable from the circumstances presented in the case a t bar. We disagree. In Happel , the supreme court framed the issue as “whe ther a pharmacy

has a duty to war

n about a known drug contraindication where the pharmacy

is aware of a customer’s drug allergies and knows that the medication prescribed by the customer’s physicia

n is contraindicated for a person with those allergies.” Happel , 199 Ill. 2d at 180-81. Plaintiff was allergic to aspirin, ibuprofe n and ac etaminop hen and e xperienc ed a seve

re rea ction af ter takin g Tora dol, a pai n reliever prescribed by

her physician. Happel , 199 Ill. 2d at 180-81. Toradol should not be taken by persons who ar

e allergic to aspirin and other nonsteroidal anti-infla mmatory drug s. Happel , 199 Ill. 2d at 180-81. Plaintiff’s physician knew of her drug allerg ies, but was unaware of Toradol’s contraindications for patients allergic to aspirin. Happel , 199 I ll. 2d at 18 1. Prior to having the prescription for Toradol filled, plaintiff had gone to the Wal-Mart pharmacy ap pr ox im at el y si x t im es to ha ve ot he r p re sc ri pt io ns fi ll ed . E ac h t im e s he we nt to th e p ha rm ac y, pharmacy workers asked her if she had any drug allergies, and ea

ch time she told them she was allergic to aspirin, ibuprofen and ace taminophen. Happel , 199 Ill. 2d at 181-82. The pharmac y manager testified that it was the pharmacy ’s policy to ask customers a bout their known allergies before dispensing medication to alert the pharma cist to any drug

interactions or allergies, and that1-09-1297

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plaintiff’s allergy

information was in the computer and available when the Tora dol prescription was filled. Happel , 199 Ill. 2d at 182. There was a lso testimony presented at trial that if the Toradol information was in the computer, a “drug inter action” warning would have flashed, requiring a call to the physician and a system ove rride before the prescription could be filled. Happel , 199 Ill. 2d at 182-83. The pharmac ist could not remember phoning the phy sician. When the prescription was picked up, plaintiff was aga in asked about any dr

ug allergies. Happel , 199 Ill. 2d at 182-83. Plaintiff became ill after taking the Toradol, and subsequently , she and her husband filed suit against her phy sician and the pharmacy

. Happel , 199 Ill. 2d at 183-84. The court found a narrow duty to warn outside of the learned intermediary doctrine under the circumstances presented in the case be cause: (1) it was undisputed that the pharmacy was aware of both the patient’s drug allergies a nd that the drug was contraindicated by persons such as plaintiff who were

allerg ic to aspir

in (super ior knowle dge); (2) the bur den was m

inimal, as it required the pharmacist to phone the phy sician and notify him or her of the contraindication or notify the patient; and (3) the re were no real consequenc es to Wal-Mart as it already had a practice of notify

ing physicians of

a patient’s drug allergies. Happel , 199 Ill. 2d at 187-88. The same circumstances are not prese nt in this case. Here, Osco did in fact notify the physician of the potential drug interaction between Tenoretic and lithium prior to filling the prescription and made such a notation in her file, where as the pharmacy in Happel did not. Even applying the

holding of Happel to the instant case, Osco acted within its duty by notify ing Laverne’s phy

sician of the potential drug interaction before filling the prescription because the Happel court indicated that the duty was discharged upon notification to the phy sician or the1-09-1297

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patient. Happel , 199 Ill . 2d at 187. A ccordi ngly, the t rial c ourt d id no t err i n find ing Happel distinguishable from the instant case. CONCLUSIO N For the foregoing r

easons, the judgment of the circuit court of Cook County is affirmed. Affirmed. MURPHY, P.J., and QUINN, J., concur.1-09-1297

10 REPORTER OF DECISIONS – IL LINOIS A PPELLATE COURT

(Front Sheet to be Attached to Each Case) CHARL ES S. DiGI OVANNI , as Spec ial Adminis trator of the Estat e of L averne

DiGiovan

ni, Deceased, Plaintiff -Appella nt, v. ALB ERTSON’S, INC. , d/b/a Osc o Drugs , Defendant-Appellee (Sachidananda D. Shastri and Gericare , Ltd., Defendants). No. 1-09-1297 Appella te Cour t of I llinois First District, THIR

D Division August 25, 2 010 (Give month, day

and yea r)

JUSTIC E STEELE deliv ered the opinio n of the

court: Murphy, P.J., and Quinn, J., concur dissent[s] Lower Court and T rial Judge(s) i n form indicated in t he margin: Circuit Ct. of Cook Co unty, Law Div. Th e H ono rable Daniel M. Loca llo , Judge Presiding.

Indi cate if

att orney repre sent s APPELLANTS or APPELLEE S and i nclu de att orney s of

couns el. Indi cate the word NONE if n ot re prese nted. Attorne ys for Plaintiff-Appellant : Spina, McGuire & Okal, P.C., of Elmwood Park, IL (Timot hy H. Okal , of Co

unsel)

Attorne ys for Defendant-Appellee: Cass ida y Scha de LL P, of Chic ago, IL (David C. Van D

yke and Trisha K. Tesmer, of Counse l ) Attor neys for Amicus Curiae : National Association of B oards of Pharma cy, of Mount Pros pect , IL (Moira G ibbons and Meli ssa M. Ma digan , of Co

unsel) Please U se Fol low ing Form: Co mple te TITLE of Case

Docket No. COURT

Opini on Filed

JUSTI CES

APPEAL f

rom the Circuit

Ct. of Coo k Co unt y, Chancery Div.

For APPELLA

NTS, John Doe, of Chicago. For APPELLEES, Smith and S mith of Chica go, Joseph Brow

n, (of Counse l) Also add attorney s for third-party appellants or appellees.