dissenting:
I respectfully dissent with the majority’s conclusion that defendants owe a. duty to a plaintiff who was not a patient, did not use the prescribed drug, and whose injury was not reasonably foreseeable. The majority’s extension of tort duty to such a remote party will unduly burden the health care industry and its professionals and is, therefore, contrary to public policy. Thus, I would affirm the trial court’s dismissal of the counts against the physicians, hospital and drug manufacturers.
Illinois courts have not allowed a nonpatient, nonuser of a drug to assert a negligence or strict product liability action for failure to warn the patient or consumer of the drug about adverse effects. The tort rationale for imposing liability on a particular defendant is based on a duty analysis. (Martin v. Kiendl Construction Co. (1982), 108 Ill. App. 3d 468, 438 N.E.2d 1187.) The concept of duty is:
“ '*** a question of whether the defendant is under any obligation for the benefit of the particular plaintiff ***.’ This question, i.e., whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the plaintiff’s benefit, is one of law for determination by the court.” (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374, 308 N.E.2d 617, quoting Prosser, Torts sec. 53, at 324 (4th ed. 1971).)
Generally, the creation of a legal duty requires that the occurrence involved must have been reasonably foreseeable; it requires more than a mere possibility of occurrence. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.) Courts have denied liability for negligence to an unforeseeable plaintiff (Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 162 N.E. 99), or an unforeseeable occurrence (Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307), and have not allowed a strict product liability by an unforeseeable plaintiff for an unforeseeable occurrence. (Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1.) Although questions of foreseeability are ordinarily for the jury to decide, where the facts alleged in a complaint on their face demonstrate that the plaintiff would never be entitled to recover, the complaint is properly dismissed. Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1.
The negligence counts in the present complaint allege that Daniel McCarthy’s physicians, Drs. Tracer and Fine, and Michael Reese Hospital and Medical Center prescribed certain drugs to McCarthy without adequate warning which directly resulted in plaintiff’s injury. In order for a duty to be imposed, the doctors and hospital should have reasonably foreseen that McCarthy would: (a) be discharged from the hospital that day; (b) consume an alcoholic beverage; (c) operate a motor vehicle; (d) pick up plaintiff as a passenger; (e) drive in a careless manner or with his mental capabilities and physical reactions diminished; and (f) collide with a tree. It seems clear that the events leading to plaintiff’s injury are indirect and unconnected to the alleged negligence of the doctors and hospital. See Van Skike v. Zussman (1974), 22 Ill. App. 3d 1039, 318 N.E.2d 244.
Although our supreme court has recognized a tort duty to one who is unknown and remote in time and place, this duty is limited by considerations of the nature of the relationship between the parties as well as the foreseeability of the injury. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250.) In Renslow, the court defined duty as “an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection” (67 Ill. 2d 348, 356), and noted at page 357 that the law recognizes only “a limited area of transferred negligence.” In other words, absent a special relationship or foreseeable injury, negligence or breach of duty as to one person which ultimately and in fact injures another to whom no duty is owed is not negligence as to the latter person. Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 162 N.E. 99. See Martin v. Kiendl Construction Co. (1982), 108 Ill. App. 3d 468, 438 N.E.2d 1187.
It is my belief that this court should not make the policy decision to transfer the duty owed to the patient and consumer of the drug to the general public. To do so would extend liability of defendants to an indeterminate class for an indeterminate time in an indeterminate amount. (See Ultramares Corp. v. Touche (1931), 255 N.Y. 170, 174 N.E. 441). Our supreme court has carefully circumscribed the limits of transferred negligence to one intimately related individual in Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250 (infant unborn at the time of alleged negligence to mother), and a well-defined class in Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656 (purchasers or lenders who might foreseeably use a plat that was negligently surveyed for a third party).
The majority recognizes that it is extending the duty to warn of adverse drug effects to the general public, but asserts that this burden on defendants is outweighed by the risks to the general public. The majority fails to acknowledge, however, that the potential liability is overwhelming. The imposition of tort liability upon doctors and hospitals to any person who may be injured by their patients will produce a “chilling effect” on drug therapy for psychiatric patients. The existence of such a legal obligation would require intimate and constant surveillance and would discourage doctors and hospitals from treating patients with medications which can be beneficial. (See Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231.) The heavy burden sought to be imposed on defendants is not outweighed by the risks to the general public, and sound policy considerations militate against that imposition of tort duty here.
Furthermore, the negligence count against Michael Reese is deficient because it does not allege that the hospital breached a recognized duty to the patient McCarthy, resulting in plaintiff’s injury. There can be no transferred duty to a nonpatient where there is no duty to warn the patient. A hospital may be liable for injuries suffered by a patient under its care on two distinct theories. (Ingram v. Little Company of Mary Hospital (1982), 108 Ill. App. 3d 456, 438 N.E.2d 1194.) The hospital may be liable both for its physician-agent’s misconduct on a respondeat superior theory or for a violation of an independent duty owed by the hospital to review and supervise medical care administered to a patient. Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253, cert. denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204; Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 399 N.E.2d 198.
There is no allegation that the physicians who prescribed the drugs to McCarthy were agents or employees of Michael Reese. Nor does the complaint allege that the agents or employees of Michael Reese negligently administered the drugs to McCarthy. Rather, plaintiff alleges that Michael Reese prescribed certain drugs to McCarthy without adequate warning to him. The decision to prescribe certain drugs is within the discretion of the treating physician. (Mahr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 390 N.E.2d 1214.) Consequently, the duty to warn the patient of adverse drug effects is owed by the physician, not the hospital. Where a negligence complaint against a hospital merely alleges matters within the duty of care owed by the treating physicians, it is properly dismissed. Pickle v. Curns (1982), 106 Ill. App. 3d 734, 435 N.E.2d 877.
With respect to the strict product liability claims against the drug manufacturers, E. R. Squibb & Sons, Inc. and SmithKline Corporation, and Michael Reese, the complaint is likewise deficient. In a “failure to warn” strict product liability action, “[t]he product is in a ‘defective condition unreasonably dangerous’ (Restatement (Second) of Torts sec. 402A (1965)), not because of some defect inherent in the product itself, but because of the absence of an adequate warning accompanying the product.” (Woodhill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 30, 402 N.E.2d 194.) It is the general rule that the manufacturer of prescription drugs has the duty to communicate á warning of potential hazards to the physicians, not to the patient, consumer or the general public. (See Stevens v. Parke, Davis & Co. (1973), 9 Cal. 3d 51, 507 P.2d 653.) The rationale for the foregoing rule is that the physician is the “learned intermediary” who decides to treat the patient with a particular drug and it would be virtually impossible for a manufacturer to warn the patient or general public directly. Carmichael v. Reitz (1971), 17 Cal. App. 3d 958, 95 Cal. Rptr. 381.
The present complaint alleges that defendants drug companies and hospital manufactured or supplied a product which “failed to contain adequate warnings of dangerous propensities.” Plaintiff does not charge that defendants failed to adequately warn the treating physicians. Thus plaintiff’s complaint fails to allege the breach of one duty that Illinois courts have recognized as a valid failure-to-warn product-liability claim against a manufacturer. Nor does plaintiff allege facts to justify the legal conclusion that the warnings were inadequate, such as failure to warn the physician that a drug consumer should not use alcoholic beverages and then drive. (See Friederich v. Board of Education (1978), 59 Ill. App. 3d 79, 375 N.E.2d 141.) Where a complaint fails to allege facts sufficient to set forth the essential elements of a cause of action, it is properly dismissed. Jones v. Eagle II (1981), 99 Ill. App. 3d 64, 424 N.E.2d 1253.
Additionally, the hospital does not have an independent duty to warn the physician or patient. The treating physician receives the information from the drug companies or from his own sources and exercises the professional judgment to prescribe a certain drug. (Mahr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 390 N.E.2d 514.) Although the hospital is in the chain of distribution of the product, the physician directs the hospital to supply the drug to the patient. Therefore, the physician’s role in the course of supplying the drug from the manufacturer to the patient insulates the hospital from strict tort liability. See Jones v. Irvin (S.D. Ill. 1985), 602 E Supp. 399; Ullman v. Grant (1982), 114 Misc. 2d 220, 450 N.Y.S.2d 955.
Moreover, in Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d I, our supreme court has limited the scope of a manufacturer’s liability to a nonuser under a strict product liability theory. There, at page II, the court stated that “the liability of a manufacturer properly encompasses only those individuals to whom injury from a defective product may reasonably be foreseen.” As with negligence actions, foreseeability is measured by what is objectively reasonable to expect, not merely what might conceivably occur. It was not objectively reasonable for the manufacturers to anticipate that a psychiatric patient treated by individual physicians in a hospital would be discharged from the hospital, consume alcoholic beverages, drive a vehicle in which plaintiff was a passenger, and collide with a tree, injuring plaintiff. Since plaintiff’s injury was not reasonably foreseeable and the manufacturers and hospital have no duty to warn a nonpatient, nonuser of a prescription drug, the trial court properly dismissed the strict product liability counts. See Bobka v. Cook County Hospital (1981), 97 Ill. App. 3d 351, 422 N.E.2d 999.
As with the negligence counts, strong public policy considerations preclude the imposition of strict liability on the drug manufacturers and hospital in this instance. One of the principal reasons for the rule of strict liability in tort is the “public interest in human life and health.” (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 619, 210 N.E.2d 182.) It has been recognized that in certain cases the protection of human life and health would not be enhanced, but would be diminished by the imposition of strict liability. (Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 415 N.E.2d 390. See Restatement (Second) of Torts sec. 402A, comment k (1966).) If strict tort liability is extended to nonusers of prescription drugs, the potential costs to the drug manufacturers will outweigh the efficacy of producing and selling them. The public may be deprived of effective drugs and medications beneficial to the treatment of disease. Therefore, the public interest in human life and health demands that the drug manufacturers not be held liable to nonusers of prescription drugs.
Similarly, strict liability should not be imposed on the hospital which supplies the drugs to the patient. “[I]n cases which deal with the conduct of individuals or institutions which themselves are pledged to protect human life and health, precautions must be taken to avoid an ultimate diminution of protection.” (Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 290, 415 N.E.2d 277.) In Greenberg, the court held that a hospital, as a provider of medical services, cannot be sued in strict liability in tort for an alleged failure to warn of the dangerous effects of X-ray radiation treatments administered by the hospital. Public policy dictates that the hospital not be held strictly liable in tort for supplying prescription drugs to a patient who later injures a nonpatient who did not consume the drug.
Since I believe that the trial court properly denied plaintiff’s motion for leave to file a fourth amended complaint, which incidentally was not furnished to the trial court, I would affirm the judgment of the trial court.