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29 September 2000

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JUSTICE INGLIS delivered the opinion of the court:

Plaintiffs, Heidi and Kent Happel, appeal the judgment of the circuit court of McHenryCounty granting summary judgment in favor of defendant, Wal-Mart Stores, Inc., and denyingplaintiffs' motion to amend their complaint. The court held that defendant had no duty to informeither plaintiff Heidi Happel or her physician that Heidi was potentially fatally allergic to aprescription drug; it also denied plaintiffs' motion to amend their complaint to add counts soundingin wilful and wanton misconduct, fraud, and battery. We affirm in part, reverse in part, and remandthe cause.

The following facts are undisputed. On August 4, 1993, Heidi contacted her physician, Dr.Ted Lorenc, looking for a more effective pain reliever to ease her menstrual cramps. Heidi wasallergic to aspirin, acetaminophen, and ibuprofen and was therefore unable to take those or relateddrugs. Dr. Lorenc prescribed Toradol, a nonsteroidal anti-inflammatory drug (NSAID), and hisoffice telephoned the prescription to defendant.

Heidi had been to defendant's pharmacy approximately six times before August 4, 1993, tohave other prescriptions filled. Each time she had a prescription filled at defendant's pharmacy, shewas asked by pharmacy workers whether she had any drug allergies, and each time she replied thatshe was allergic to aspirin, acetaminophen, and ibuprofen. Defendant required its pharmacy to solicitinformation from its customers concerning drug allergies before filling a prescription to avoiddispensing drugs to which the customers were allergic. Two of defendant's pharmacists testified intheir depositions that Heidi's allergies were entered into the pharmacy's computer system at sometime prior to August 4, 1993. In addition to the information contained in the pharmacy's computersystem, to which the employees had access on August 4, Heidi's allergies to aspirin, acetaminophen,and ibuprofen were handwritten on the prescription for Toradol.

Toradol is an NSAID and is contraindicated for persons allergic to aspirin and other NSAIDs. Despite their knowledge that Heidi was allergic to aspirin, acetaminophen, and ibuprofen, plaintiffswere unaware that those drugs belonged to the NSAID class of drugs or that Heidi was allergic todrugs belonging to that class of drugs and should not take any drugs belonging to that class. Plaintiffs had not heard of or used Toradol before August 4, 1993.

Pharmacist Florence Bowser, who was the only pharmacist working at defendant's pharmacyon August 4, 1993, testified at her deposition that she had no independent recollection of fillingHeidi's prescription on that day. Bowser testified that she knew that Toradol was contraindicatedfor persons allergic to aspirin and other NSAIDs. Bowser also testified that pharmacists are requiredto know a customer's drug allergies and contraindications. She testified that, according to her customand practice, when she tried to fill a Toradol prescription for a person allergic to aspirin andNSAIDs, a contraindication alert would have flashed across the computer screen that would havehalted the prescription process by preventing the pharmacist from printing the prescription label orentering the charges. Bowser testified that the process could be continued only if a pharmacistoverrode the contraindication alert. Bowser further testified that defendant's policies required thepharmacist to contact the prescribing physician and inform him of the contraindication for hispatient. Bowser testified that there was no record or indication that Heidi's prescribing physician,Dr. Lorenc, had been contacted about the contraindication in this case.

On August 4, 1993, Kent visited defendant's pharmacy to have Heidi's prescription filled. Before the prescription was filled, a pharmacy employee asked Kent about Heidi's drug allergies andKent informed the worker that Heidi was allergic to aspirin, acetaminophen, and ibuprofen.

Both Bowser and defendant's pharmacy manager, Steven Odes, testified during depositionthat the only way Heidi's Toradol prescription could have been filled was to use a special code tooverride the contraindication alert. Neither Dr. Lorenc nor his staff received a call from defendantadvising that Toradol was contraindicated for Heidi, and defendant has not produced a record toindicate that the pharmacy contacted Dr. Lorenc. Bowser testified that it was her custom andpractice to document any conversation with a physician either on the prescription or in the patient'scomputer record.

Dr. Lorenc testified in his deposition that, at the time he prescribed Toradol for Heidi, he didnot know that it was contraindicated for patients with allergies to aspirin or other NSAIDs. Dr.Lorenc further testified that, had he known of the contraindication, he would not have prescribed itfor Heidi.

Heidi began to feel the onset of respiratory distress after taking the first dose of Toradol. Shebegan a nebulizer breathing treatment and called defendant to determine if there were any reason thatshe would be having a reaction to Toradol. Her first call was disconnected. Heidi called again andwas informed that there was no reason for her to be experiencing a reaction and that she need notworry. Heidi then called her previous pharmacist, who was aware of her drug allergies, and headvised her to begin the nebulizer treatment if she had not yet done so and to go to the emergencyroom if her condition worsened. Heidi went to the emergency room, where she was found to beexperiencing anaphylactic shock. Heidi testified that, as a result of taking Toradol, she currentlyexperiences more frequent and intense asthma episodes and that she also experienced seizures andan exacerbation of multiple sclerosis.

On September 30, 1994, plaintiffs filed this negligence action against defendant and Dr.Lorenc. On March 8, 1999, defendant filed a motion for summary judgment. On March 15, 1999,plaintiffs settled with Dr. Lorenc and dismissed him from their complaint. Plaintiffs then filedmotions to amend their pleadings and to add prayers for punitive damages, which were denied bythe trial court.

The trial court also denied defendant's motion for summary judgment. Defendant filed amotion to reconsider, arguing that defendant neither owed plaintiff a legal duty to warn norvoluntarily assumed such a duty. On September 17, 1999, the trial court granted summary judgmentin favor of defendant and denied plaintiffs' motion to amend their pleadings. Plaintiffs timely appeal.

Following plaintiffs' notice of appeal, we granted leave to the National Association of Boardsof Pharmacy (NABP) to file an amicus curiae brief supporting plaintiffs' arguments. We also grantedleave for the National Association of Chain Drug Stores to file an amicus curiae brief supportingdefendant's arguments. Defendant filed a motion in this court seeking to strike the NABP's brief forincluding materials outside the record. We ordered defendant's motion taken with the case. TheNABP filed a response to defendant's motion and defendant filed a motion to strike the response,arguing that an amicus does not have the right to engage in motion practice. We do not believe that,merely by responding to defendant's motion, the NABP has engaged in motion practice before thiscourt. Additionally, defendant's reliance upon Zurich Insurance Co. v. Raymark Industries, Inc., 118Ill. 2d 23, 59-60 (1987), is inapposite, as there the amicus filed a motion to strike the brief of anotheramicus. Here, the NABP merely filed objections to defendant's motion. Thus, we deny defendant'smotion to strike the NABP's response. Last, upon review of defendant's motion to strike the NABP'sbrief, we find that the materials provided by the NABP are relevant to standards of practice and care,all of which are issues raised by the parties in this case. Accordingly, we deny defendant's motionto strike the NABP's brief.

Turning to the substantive issues on appeal, plaintiffs first contend that the trial courterroneously granted summary judgment in favor of defendant. Whether the trial court properlygranted summary judgment is a question of law that we review de novo. Colonial Inn Motor Lodge,Inc. v. Gay, 288 Ill. App. 3d 32, 39 (1997). Summary judgment is properly granted if the pleadings,depositions, admissions, and affidavits on file show that there is no genuine issue of material factand that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2--1005(c) (West1998). "A court should not grant summary judgment unless the movant's right to it is clear and freefrom doubt, and the court must construe the evidence strictly against the movant and liberally infavor of the nonmovant." Colonial Inn Motor Lodge, 288 Ill. App. 3d at 39.

In general, "[a] pharmacist owes a duty of ordinary care in practicing his profession, but suchcare requires the highest degree of prudence, thoughtfulness and diligence, and it is proportioned tothe danger involved." Eldridge v. Eli Lilly & Co., 138 Ill. App. 3d 124, 126 (1985). The contoursof a pharmacist's duty have been developed during the preceding century; however, no reported casehas dealt squarely with the issue presented in this case, namely, whether a pharmacist has a duty towarn a patient concerning a certain, adverse, and potentially fatal drug interaction with the prescribedmedication. Before addressing this question, we must first determine the scope of the pharmacist'sduty.

In Jones v. Irvin, 602 F. Supp. 399 (S.D. Ill. 1985), the federal district court, sitting indiversity, held that a pharmacist does not have a duty to warn either the patient or the physician thatthe medication is being prescribed in an excessive amount when the pharmacist has correctly filledthe prescription. Jones, 602 F. Supp. at 402. In Eldridge, the court followed Jones in holding thata pharmacist did not have a duty to notify the patient or physician that a drug was being prescribedin dangerous amounts. Eldridge, 138 Ill. App. 3d at 126-27. The court reasoned that "[t]he proprietyof 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 ofanother." Eldridge, 138 Ill. App. 3d at 127. The court concluded that, if it imposed on thepharmacist a duty to warn, the pharmacist would have to "learn the customer's condition and monitorhis drug usage," thereby "interject[ing] himself into the doctor-patient relationship and practic[ing]medicine without a license." Eldridge, 138 Ill. App. 3d at 127.

Next, our supreme court adopted the learned intermediary doctrine in Kirk v. Michael ReeseHospital & Medical Center, 117 Ill. 2d 507 (1987). Kirk held that a drug manufacturer did not havea duty directly to warn the customer about possible side effects of the medication. Kirk, 117 Ill. 2dat 519. The court reasoned that the doctor functions as a learned intermediary between the drugmanufacturer and the patient and uses his medical judgment in deciding what information andwarnings he or she will provide the patient. Kirk, 117 Ill. 2d at 519. In Leesley v. West, 165 Ill.App. 3d 135 (1988), this court extended the learned intermediary doctrine to pharmacists byprecluding the imposition of a duty to warn of dangerous side effects of a drug. Leesley, 165 Ill.App. 3d at 141-42. In Leesley, the plaintiff suffered one of the known, but infrequent, side effectsof the prescription drug he was taking. Leesley, 165 Ill. App. 3d at 137. The court reasoned that thepharmacist could have no greater duty to warn the customer than the drug manufacturer and held thatit was the physician's duty to inform a patient of the risks and side effects associated with amedication. Leesley, 165 Ill. App. 3d at 142-43.

More recently, the issue of whether a pharmacist has a duty to warn that a drug is beingprescribed in an excessive quantity was again addressed in Fakhouri v Taylor, 248 Ill. App. 3d 328(1993). The court held that there was no duty imposed on the pharmacist to warn that a drug wasprescribed in an excessive quantity and that it would be "illogical and unreasonable to impose agreater duty on the pharmacist who properly fills a prescription than is imposed on the drug'smanufacturer." Fakhouri, 248 Ill. App. 3d at 332-33.

Most recently, this court held that, if a pharmacist voluntarily undertakes a duty to warn acustomer about the side effects of a medication, that duty extends only to the information that thepharmacist provides. Kasin v. Osco Drug, Inc., 312 Ill. App. 3d 823, 827 (2000); see also Frye v.Medicare-Glaser Corp., 153 Ill. 2d 26 (1992). The court reasoned that, once a pharmacist providesinformation, he removes himself from the protection of the learned intermediary doctrine, but onlyto the extent that the information he has chosen to provide must be complete and accurate. Kasin,312 Ill. App. 3d at 827. Merely by choosing to warn about a few specific side effects, the pharmacistis not required to warn about all possible side effects. Kasin, 312 Ill. App. 3d at 828-29.

The foregoing cases teach that the law does not impose upon the pharmacist a generalizedduty to warn the physician or the patient about the side effects or excessive quantities of a prescribedmedication. The underlying rationale of these cases is that to impose such a duty on the pharmacistwould effectively require him to exercise medical judgment in deciding whether the physician hadcorrectly prescribed a medication and in the correct amount to treat a condition. Further, these casesall place the responsibility upon the physician to inform the patient concerning the risks and benefitsof the chosen medication. This rationale, however, is not implicated under the facts of this case. Here, the pharmacist knew that Toradol was contraindicated for Heidi; in other words, thepharmacist knew that, for Heidi, Toradol was a poison and would injure, if not kill, her. This is nota case in which the plaintiff is asking the pharmacist to exercise any modicum of medical judgmentor to interject himself into the doctor-patient relationship. Therefore, the foregoing cases, along withtheir rationale, are inapposite to the facts of this case, and the duty defined in those cases does notnecessarily extend to the facts of this case. We must therefore consider the parties' argumentsconcerning the duty to warn.

Plaintiffs argue that the duty defendant owed to Heidi included a duty to warn her or herphysician that, based on her known allergies, she would experience an adverse and possibly fatalreaction to Toradol and that, therefore, her use of Toradol was contraindicated. Defendant countersthat a pharmacist owes no duty to warn a customer or his or her physician about any potential sideeffects associated with a medication.

Whether a duty exists is a question of law. A court determines whether a duty exists in aparticular case by considering (1) the foreseeability that the defendant's conduct may injure another;(2) the likelihood of an injury occurring; (3) the burden placed on the defendant by imposing a duty;and (4) the consequences of imposing this burden on the defendant. Colonial Inn Motor Lodge, 288Ill. App. 3d at 40. Based on our consideration of these factors, we conclude that, in this case,defendant owed plaintiffs a duty to warn.

First, rather than merely being foreseeable that defendant's decision not to warn Heidi or Dr.Lorenc that Toradol was contraindicated could cause Heidi injury, it was nearly certain that Heidiwould sustain injury, and perhaps a fatal injury, if she ingested the Toradol as prescribed. Thus, boththe foreseeability and likelihood of injury strongly favor imposing a duty to warn on defendant.

The burden on defendant to warn either Heidi or Dr. Lorenc is minimal. Defendant merelyneeded to place a telephone call to Dr. Lorenc and inform him that Toradol was contraindicated forpatients who were allergic to aspirin and NSAIDs. Alternatively, defendant could have given thesame information to Heidi. In either case, the burden on defendant to warn about thecontraindication was extremely small. This factor also strongly favors imposing a duty to warn ondefendant.

Next, we consider the consequences of imposing a duty. Defendant contends that, byrequiring defendant to inform either Heidi or Dr. Lorenc about the contraindication, we would beinterjecting the pharmacist into the middle of the doctor-patient relationship and requiring thepharmacist to second-guess the doctor and act as a sort of safety supervisor. See Eldridge, 138 Ill.App. 3d at 126-27. We fail to see the merit of defendant's contention. Defendant is not required tomake some sort of medical judgment here, such as whether the dosage is therapeutic or dangerous. Rather, defendant is merely required to pass on the knowledge that, for Heidi, the prescribed drugis a possibly deadly poison. Defendant is neither insinuating itself into the doctor-patientrelationship nor second-guessing the physician. Instead, defendant is simply Heidi's last, best chanceto avoid serious injury or death. We determine that, under the facts of this case, the consequencesof imposing the duty to warn on defendant are minimal and will not result in some sort of across-the-board burden on the pharmacist to fully instruct his or her customers about all side effects.

Additionally, the NABP also suggests that defendant had a duty to warn in this case. TheNABP notes that pharmacy is a profession, with certain universal standards and practices. TheNABP observes that the duty to warn in this case is consonant with the professional practices andstandards expected of a pharmacist. Thus, the NABP suggests that the recognition of a duty in thiscase is commensurate with the status of pharmacy as a profession and with the pharmacist'sprofessional responsibilities. We find the NABP's advocacy to be persuasive: that the professionalassociation for pharmacists demands that pharmacists be held to a duty to warn in this case stronglysupports our conclusion. Accordingly, we hold that, under the circumstances here, where defendantknew of Heidi's allergies, where defendant knew that Toradol was contraindicated for a person withHeidi's allergies, and where defendant knew that injury or death was substantially certain to result,defendant had an affirmative duty to disclose, either to Dr. Lorenc or to Heidi, the information thatHeidi should not take Toradol.

Defendant argues that Leesley controls the legal result in this case. We disagree. In Leesley,the court held that the pharmacist was not required to give the customer warnings about general andinfrequent side effects. Leesley, 165 Ill. App. 3d at 137, 143. Here, by contrast, the pharmacistactually knew that Toradol was contraindicated in Heidi's specific case and that injury or deathwould result if Heidi took the medication. Thus, the side effect was not merely an infrequentpossibility but was substantially certain to result in this case. Leesley, therefore, is factuallydistinguishable. In light of our determination, we need not address plaintiffs' remaining argumentson this issue.

Next, plaintiffs contend that the trial court erred in denying them leave to amend theirpleadings to state claims of wilful and wanton misconduct, battery, and fraud and to add prayers forpunitive damages. Whether to permit or refuse amendments to pleadings is committed to the trialcourt's discretion, and we will not disturb its determination absent an abuse of discretion. Meyersv. Rockford Systems, Inc., 254 Ill. App. 3d 56, 66 (1993).

Initially, we note that plaintiffs have abandoned their wilful and wanton misconduct claim. On April 30, 1999, plaintiffs filed a motion for leave to amend their pleadings to add a count ofwilful and wanton misconduct. Plaintiffs' proposed amended complaint added count III for wilfuland wanton misconduct. On July 16, 1999, the trial court denied plaintiffs' motion for leave toamend their pleadings. On August 9, 1999, plaintiffs filed an amended motion for leave to amendtheir pleadings. This time, the amended complaint included count III for battery and count IV forfraud; plaintiffs did not include any count or allegations of wilful and wanton misconduct, nor didthey incorporate that count by reference to any earlier pleadings. Allegations in a former complaintnot incorporated into the final amended complaint are deemed to be waived. Barnett v. Zion ParkDistrict, 171 Ill. 2d 378, 384 (1996). Accordingly, plaintiffs have waived their contentionsconcerning wilful and wanton misconduct.

We also find that the trial court did not abuse its discretion in refusing plaintiffs leave toamend their complaint to include counts for battery and fraud. To allege battery, the plaintiff mustallege that the defendant intended to cause a harmful or offensive contact and that a harmful oroffensive contact resulted. Cohen v. Smith, 269 Ill. App. 3d 1087, 1090 (1995). Plaintiffs' batteryclaim is fatally defective, as it fails to include a proper allegation of intent. At best, plaintiffs allegedthat defendant was reckless in filling the Toradol prescription. These allegations fall short of theknowing or intentional conduct required to support a claim for battery. Thus, the trial court did notabuse its discretion in refusing to grant plaintiffs leave to amend their complaint to include a countof battery.

In order to allege fraud, a plaintiff must specifically allege that the defendant intentionallymade a false statement of material fact, the plaintiff had a right to rely on the statement and did so,the defendant made the statement to induce the plaintiff to act, and the plaintiff's reliance on thestatement led to an injury. Israel v. National Canada Corp., 276 Ill. App. 3d 454, 464 (1995). Plaintiffs' claim of fraud is again fatally defective, as they have alleged, at best, that the purportedmisrepresentation was recklessly made, not intentionally. Thus, the trial court did not abuse itsdiscretion in refusing to grant plaintiffs leave to amend their complaint to include a count of fraud.

Accordingly, we affirm the judgment of the circuit court of McHenry County that deniedplaintiffs leave to amend the complaint, reverse the trial court's judgment granting summaryjudgment in favor of defendant and against plaintiffs, and remand the cause for further proceedingsconsistent with this order.

Affirmed in part and reversed in part; cause remanded.

GEIGER and GALASSO, JJ., concur.