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Archive for the ‘Medical Malpractice’ Category

After A.G., a minor, had two benign moles removed in 2004, his doctor gave him a prescription for ibuprofen. His parents, the Gaetas, bought an over-the-counter generic ibuprofen manufactured by Perrigo Pharmaceuticals (“Perrigo”). Later, A.G. developed a high fever and had to be rushed to the hospital and treated for liver failure. A.G. needed a liver transplant less than two weeks after the mole surgery and later had dead tissue from his fingers and toes amputated. Doctors determined that the ibuprofen had clashed with the anesthetic Halothane, which had been administered during the mole-removal surgery. Halothane is hepatotoxic or known to cause liver failure in some circumstances.

The Gaetas sued Perrigo and other manufacturers of generic ibuprofen, alleging defective design, defective marketing, breach of express and implied warranties, negligence and gross negligence, and deceit by concealment. The Gaetas claimed that Perrigo failed to warn doctors and consumers that ibuprofen could cause liver injury if mixed with other drugs. In response, Perrigo argued that the Gaetas’ state-law failure-to-warn claims were preempted by the labeling and marketing regulations of the Food and Drug Administration (“FDA”) governing generic drugs. The trial court agreed, concluding that since federal law required generic drugmakers to conform to the approved labeling of brand-name drugs, Perrigo could not have changed its labeling without violating federal law.

The Gaetas appealed the decision to the Ninth Circuit Court of Appeals. While the appeal was pending, the United States Supreme Court issued its opinion in Wyeth v. Levine, holding that approval of medication by the FDA does not shield a manufacturer of brand-name medications from liability under state law. After Levine, the Gaetas won a limited remand from the Ninth Circuit so that the trial court could reconsider its decision with the Supreme Court ruling in mind. The trial court denied the motion for reconsideration, however, and ruled that the high court’s decision only applied to brand-name drug manufacturers.

The Gaetas again appealed the trial court’s decision. With its holding, the Ninth Circuit joins the Fifth and Eighth Circuits in applying Levine to generic drugs as well. The court noted that (1) manufacturers are primarily responsible for warning consumers about possible drug dangers because they have better access to information about their products than the FDA, and (2) there is nothing in Levine that limits this responsibility to brand-name drug manufacturers. The court stated that both sets of manufacturers must take specific steps when they learn of new risks associated with their products. Finally, the court concluded that compliance with both state and federal law was not “impossible.” Accordingly, the court remanded the case to the trial court for further proceedings.

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In 2005, Illinois adopted a law that limited jury awards for pain and suffering to $500,000 against doctors and $1 million against hospitals. Illinois medical and business industries supported the cap, claiming jury awards against medical providers had led to astronomical malpractice insurance rates, which in turn, had driven doctors out of the state. Trial lawyers and patient-rights groups argued that the real factor behind medical malpractice insurance rate hikes is the insurance industry. The Illinois Supreme Court called the law a legislative branch infringement on an issue that should be decided by the courts:

The separation of powers clause prohibits one branch of government from exercising ‘powers properly belonging to another. Thus, the inquiry under the separation of powers clause is not whether the damages cap is rationally related to a legitimate government interest but, rather, whether the legislature, through its adoption of the damages cap, is exercising powers properly belonging to the judiciary.

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Nineteen-year-old William Freund had suffered from Asperger’s Syndrome, a form of autism that affects social skills, and received treatment for that condition from Dr. Laurence Greenberg, a psychiatrist, for several years.  Freund lived next door to the Smith family.  He was friends with Brandon Smith and attended school with him.  Freund had never exhibited any violent tendencies.

One day, Freund visited the Smith home and shot two members of the family to death.  He then returned to his home and turned the gun on himself.  After these incidents occurred, the remaining members of the Smith family learned that Freund had visited a website called Wrong Planet, writing that he had purchased a gun and planned to “blast things away.”  The Smiths brought a wrongful death suit against Greenberg for medical negligence.  Specifically, they alleged that Greenberg’s course of treatment caused Freund’s violence against their family members.  Greenberg moved for summary judgment, noting that he he owed no duty to the Smiths.  The trial court denied the motion.

On appeal, the Superior Court of Orange County noted that Freund had no history of violent behavior and never given any indication to Greenberg that he intended to harm himself or others.  Consequently, the court held that Greenberg did not owe a duty of care to the Smith family when determining the care and treatment of Freund.  For a full account of this story, click here.

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Kelly v. Estate of Kenneth Edwards, Sr., Deceased, No. 08-1234.

Under Arkansas law, a person cannot serve as administrator of an estate if he or she is a convicted felon.  In August 1996, plaintiff pled guilty to two felonies (theft of property and forgery).  After his father died, plaintiff was appointed administrator of his father’s estate by a probate court in 2003.  Plaintiff then brought a medical negligence case against Dr. Thomas Kelly and Cooper Clinic, P.A.,  in 2004 related to his father’s care and death.

After learning that plaintiff was a convicted felon, defendants sought to intervene in the probate estate case.  The probate court refused, noting that defendants’ motion was untimely.  On appeal, the Arkansas Supreme Court stated that timeliness should be determined based on the following factors:  (1) how far the proceedings have progressed, (2) whether any other parties have been prejudiced by the delay, and (3) the reason for the delay.  The court focused on the fact that the estate would be prejudiced by allowing defendants to intervene in the probate estate and affirmed the probate court’s decision.

Essentially, under these circumstances, no one can contest that a felon is acting as administrator of an estate?  Does that seem right?

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