Friedl v. Airsource, Inc.

Case Date: 07/05/2001
Court: 1st District Appellate
Docket No: 1-00-0877 Rel

FOURTH DIVISION
July 5, 2001



No. 1-00-0877


MARY L. FRIEDL,

         Plaintiff-Appellant,


                    v.

AIRSOURCE, INC., a Corporation,
f/k/a Medsource, Inc., STEPHENS
MEDICAL, INC., d/b/a
Woundcure, Inc.,

          Defendants-Appellees.

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Appeal from the
Circuit Court of
Cook County.



No. 98 L 11869



Honorable
Diane J. Larsen,
Judge Presiding.


JUSTICE BARTH delivered the opinion of the court:

Plaintiff Mary L. Friedl filed a complaint against defendants Airsource, Inc., andStephens Medical, Inc. (collectively defendants), alleging their negligence had contributed todisabling oxygen burns she sustained to her feet. The trial court granted defendants' motion todismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(West 1998)) and Friedl now appeals that order.

BACKGROUND

The following is contained in the complaint. Friedl suffers from multiple sclerosis. As aresult, she is prone to developing sores and lesions on her feet. In an attempt to reduce the painassociated with the lesions, Friedl sought and obtained a prescription from her physician for aportable hyperbaric oxygen chamber. Friedl leased a "Hyper-pulse" intermittent topical oxygenchamber from defendants which delivered it to her home.

Friedl used the machine for several weeks, but the condition of her feet continued todeteriorate. When Friedl complained to defendants, they told her she needed to use the machinefor longer periods of time. Friedl continued to use the machine and suffered oxygen burns to herfeet as a result. Friedl alleged the oxygen burns were caused by defendants' failure to instruct herproperly on the operation of the machine. Specifically, she alleged that defendants did notinstruct her to put water into the machine in order to humidify the oxygen during use, that theydid not provide her with the necessary available video and written materials on the machine's useand operation and that the operating instructions they did give her were misleading andinsufficient.

Defendants filed a motion to dismiss pursuant to sections 2-615 and 2-619 of the IllinoisCode of Civil Procedure (Code). (735 ILCS 5/2-615, 2-619 (West 1998)). Defendants' section2-619 motion argued that because the machine was prescribed for Friedl's use by her physicianand defendants merely delivered the machine, the learned intermediary doctrine insulateddefendants from liability. The trial court dismissed the action against defendants on section 2-619 grounds and this appeal followed.

ANALYSIS

Section 2-619 of the Code provides the means by which a defendant may obtain asummary disposition of issues of law or easily proved issues of fact. Kedzie & 103rd CurrencyExchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993). For purposes of a section 2-619 motion,all well-pleaded facts in the complaint are deemed admitted and only the legal sufficiency of thecomplaint is at issue. Kubian v. Alexian Brothers Medical Center, 272 Ill. App. 3d 246, 250(1995). The granting of a section 2-619 motion to dismiss is given de novo review on appeal. Kedzie & 103rd Currency Exchange, 156 Ill. 2d at 115-16.

The learned intermediary doctrine was adopted by our supreme court in Kirk v. MichaelReese Hospital & Medical Center, 117 Ill. 2d 507 (1987). The Kirk court found that under thelearned intermediary doctrine, prescription drug manufacturers' duty to warn of a drug's knowndangerous propensities extended only to prescribing doctors. Kirk, 117 Ill. 2d at 517. Thedoctors, in turn, using their medical judgment, had a duty to convey those warnings to theirpatients. Kirk, 117 Ill. 2d at 517. The court recognized that prescription drugs were complexmedicines with varied effects and that a physician's selection of a particular drug and drugwarnings for a particular patient was an informed one, based on his individual knowledge of thedrug's propensities and his patient's susceptibilities. Kirk, 117 Ill. 2d at 518-19. Because thephysician thus acted as a "learned intermediary" between the manufacturer and the consumerwith prescription drugs, a manufacturer had fulfilled its duty to warn if it had informed thephysician of the drug's known dangerous effects. Kirk, 117 Ill. 2d at 519.

This court has extended the learned intermediary doctrine set forth in Kirk to pharmacists. Most recently, in Fakhouri v. Taylor, 248 Ill. App. 3d 328, 329-30 (1993), the plaintiff, asadministrator for the decedent's estate, filed a wrongful death action against the defendantpharmacists, alleging the pharmacists should have warned either the decedent or the decedent'sdoctor that the prescribed dosage of medication exceeded the manufacturer's recommendeddosage. The Fakhouri court reviewed with approval our prior decisions in Leesley v. West, 165Ill. App. 3d 135 (1988), and in Eldridge v. Eli Lilly & Co., 138 Ill. App. 3d 124 (1985) whichheld that like prescription drug manufacturers, pharmacists did not have a duty to warn customersof a drug's potential adverse effects. Fakhouri, 248 Ill. App. 3d at 333. In Leesley, the courtfound that because a prescription drug that has been prescribed by a doctor who has receivedmanufacturer drug warnings is not an unreasonably dangerous product, the learned intermediarydoctrine dictated that neither the manufacturer nor the pharmacist was required to provideconsumer drug warnings. Leesley, 165 Ill. App. 3d at 140-41. In Eldridge, the court ruled thatthe selection of a patient's medication required the individualized medical judgment that only thepatient's physician possessed and that requiring pharmacists to warn consumers about the dangersof a prescription drug would improperly place the pharmacist in the middle of the doctor-patientrelationship. Eldridge, 138 Ill. App. 3d at 127.

The learned intermediary doctrine has been considered by this court in relation to medicaldevice manufacturers. Hansen v. Baxter Healthcare Corp., 309 Ill. App. 3d 869, 881 (1999),appeal allowed, 188 Ill. 2d 564 (2000)(1), was a products liability action in which the plaintiffargued the defendant had failed to warn consumers its luer slip connectors used with intravenoustubing could come apart in use. The court explained that in medical device cases, the intendedaudience for product warnings was not the patients, but the prescribing physicians. Hansen, 309Ill. App. 3d at 881. Consequently, as with prescription drugs, medical device manufacturers havea duty to warn physicians of the device's dangerous propensities who then had a duty to conveyany relevant warnings to their patients. Hansen, 309 Ill. App. 3d at 881. However, since amedical device manufacturer had no duty to warn physicians of a device's dangers if the medicalcommunity was already generally aware of those dangers and trial testimony showed the medicalcommunity knew the luer slip connectors could separate, the defendant Baxter Healthcare had noduty to warn. Hansen, 309 Ill. App. 3d at 881-82. See also Pluto v. Searle Laboratories, 294 Ill.App. 3d 393, 396 (1997) (the learned intermediary doctrine, when applied, limits the prescriptiondevice manufacturer's duty to warn to physicians).

Defendants contended in their motion to dismiss that under the learned intermediarydoctrine, they had no duty to warn Friedl of the hyperbaric chamber's dangerous propensities. According to defendants, because they merely delivered the prescription device Friedl's physicianhad ordered for her, their role was analogous to that of the pharmacist. The trial court's rationalefor granting the motion to dismiss is not part of the record before us(2).

We deem defendants' reliance on the learned intermediary doctrine to be misplaced. Unlike the medical device cases in which the learned intermediary doctrine has previously beenconsidered, suitability of the device as a treatment for a plaintiff's condition is not at issue here. See Hansen, 309 Ill. App. 3d at 881-83; Pluto, 294 Ill. App. 3d at 396. The rationale for thedevelopment and implementation of the learned intermediary doctrine is not implicated by thecomplaint. The complaint against the defendants does not suggest that the hyperbaric chamberwas wrongly prescribed, taking into consideration the inherently dangerous propensities of thedevice in conjunction with Friedl's particular susceptibilities. Her complaint does not allege thatdefendants should have warned her not to use the hyperbaric chamber as prescribed by herphysician. See Fakhouri, 248 Ill. App. 3d at 330-31. Nor does it allege defendants failed to warnher of any risks associated with the correct use of the machine as prescribed. See Pluto, 294 Ill.App. 3d at 396. Instead, Friedl alleged defendants failed to provide her with the basicinstructions necessary for the machine's proper operation by failing to tell her the unit needed tobe filled with water prior to use in order to humidify the oxygen used in the therapy and byfailing to provide her with the necessary available video and written materials illustrating properoperation of the machine. The defendants have not cited, nor has our research discovered, anyIllinois case that stands for the proposition that a medical device manufacturer or distributor thatprovides incomplete operating instructions, resulting in injuries unrelated to whether the devicewas properly prescribed, is nevertheless immunized from liability by the learned intermediarydoctrine. We decline to make such a pronouncement. We hold that the learned intermediarydoctrine does not apply to bar actions against distributors of prescribed medical devices forfailing to properly instruct the consumer about the device's operation. Accordingly, the trialcourt erred in dismissing Friedl's action against defendants.

For the reasons set forth, the order of the trial court is reversed and the cause is remandedfor further proceedings consistent with this order.

Reversed and remanded.

HARTMAN, P. J., and HOFFMAN, J., concur.

 

1. The petition for leave to appeal was allowed on April 5, 2000. The Illinois SupremeCourt heard oral argument on March 20, 2001, and as of the date of this opinion, the matterremains on the court's advisement document.

2. The record on appeal supplied by Friedl is incomplete. Although it was represented thatthe report of proceedings of the hearing on defendants' motion to dismiss was included in therecord filed in this matter, the report of proceedings filed was related to a different case. However, because the matter before us is reviewed de novo, the report of proceedings providingthe rationale for the trial court's dismissal is not essential to our disposition and we consider thisappeal on its merits. See Kedzie & 103rd Currency Exchange, 156 Ill. 2d at 115-16.