In a recent Illinois pharmaceutical error case, the First District Appellate Court of the State of Illinois reversed a $25 million punitive damage award against Walgreen Co. in Marston, etc. v. Walgreen Co., 1-07-0209. The case revolved around the death of an elderly man who was given the wrong prescription allegedly as a result of a pharmacy mistake. The 77 year-old decedent had requested an anti-gout medicine, but was instead given a drug that treats diabetes by lowering blood sugar.
The court upheld a Chicago, Cook County jury award of $6.35 million in compensatory damages after finding that the plaintiff established that taking wrong drug caused the decedent’s kidneys to fail, which led to his death. The plaintiff died during pretrial proceedings.
At trial, the Walgreen’s pharmacist testified that he incorrectly filled the decedent’s prescription. Evidence was also presented that suggested the pharmacist was abusing narcotics and stealing pharmaceuticals from the Walgreen’s store. The evidence showed that the pharmacist did not remember if he was taking drugs on the date of the misfilled prescription.
The attorneys for the decedent brought the punitive damage count into the case based on Walgreen’s alleged failure to discovery inventory discrepancies and its alleged failure to comply with federal and state laws requiring it to keep a record of the controlled substances it gave out to customers. It alleged that if Walgreen’s had been paying attention, then this pharmacist would have been fired much sooner and would have not been the pharmacist on the job when the decedent’s prescription was filled.
The Illinois Supreme Court has consistently held that absent specific, statutory authority or very strong equitable reasons, punitive damages are not permitted in Illinois under the Illinois Survival Act, 755 ILCS 5/27-6 or as a part of a common law action for wrongful death.
The Illinois Appellate Court stated, “In the case before us, it is clear that the plaintiff was entitled to recover compensatory/damages, and indeed more than $6 million for compensatory damages was awarded by the jury.” The Illinois Appellate Court upheld the compensatory damages award in spite of Walgreen’s argument that the introduction of evidence relating to punitive damages was so prejudicial that it was entitled to a new trial. It also rejected the pharmacy’s contention that the award was excessive.