Physicians ignore man's allergy, resulting in death: Michigan bench trial ends with a $150,000 verdict
By Mark K. Delegal, Esq., and Jan Gorrie, Esq.
Pennington, Moore, Wilkinson, Bell and Dunbar, PA
Tallahassee, FL
News: A man died following hospitalization and treatment with medications to which he was allergic. In a suit against the hospital, the bench trial resulted in a $150,000 verdict in favor of the man's estate.
Background: The 66-year-old Michigan man suffered from emphysema, coronary artery disease, gout, kidney failure, and peripheral occlusive vascular disease. He presented himself to his local Veteran's Affairs (VA) hospital with an ulcer on his toe that had failed to heal on its own. He was hospitalized and treated for oesteomyelitis and cellulitis over the course of the next three weeks.
At the time of admission, he said he was allergic to sulfa drugs and quinine. It was noted in his medical record. Unasyn was prescribed but was ineffective. He was then given Bactrim, a sulfa-based medication, despite the noted allergy. There is no test to determine if a person is allergic to sulfa before administering the drug. Another alternative medication was Cipro at a cost of $7 per day; the cost per day of Bactrim was $4. The VA hospital is a restricted-drug hospital, so drugs such as Cipro require approval from the infectious disease clinic before they are prescribed.
During his three-week hospitalization, the patient experienced continuous nausea and vomiting. When discharged, he was given a prescription for oral Bactrim. His pharmacist declined to fill the prescription until he was able to confirm that it could be given to a person claiming to be allergic to it. The pharmacist contacted the patient's physician, who approved the prescription, and prescription was then filled.
Two weeks later, the patient developed a severe rash. His home health attendants insist-ed he go to a clinic. The patient told the clinic's physician that he had stopped taking Bactrim two or three days before, and the physician changed his medication from Bactrim to Cipro. Several days later, after being seen at the routine clinics for his other pre-existing conditions, he was readmitted to the VA hospital with indications that he appeared "chronically ill," according to his attending physician.
The VA pulmonologists believed that he was having an allergic reaction to the sulfa-based medication. The infectious disease physicians thought it was something else. Two weeks later, the physicians still had not resolved their differing opinions. The patient died of respiratory distress syndrome.
The plaintiffs argued that the physicians acted negligently by ignoring the patient's allergy. The physicians contended the patient's treatment was appropriate and that he died as a result of causes unrelated to the medication, specifically, congestive heart failure. They said the cost of the alternative medication was a factor in their decision to administer the sulfa-based medication.
The classic allergic reaction to sulfa is to develop a rash within days of its administration. The experts at trial debated, as did the treating physicians, whether the delay in his getting the rash was the result of an allergic reaction to the sulfonamide or if it was the result of his other aliments. They also argued about whether there was a compounding effect based on his use of multiple prescription medications for his various maladies.
The plaintiff's attorneys noted that defense experts were critical to their success at trial. The first expert seemed to support the VA pulmonologists, who had argued that the patient was suffering from an allergic reaction. He was not available for the trial, and the defendant's second expert appeared to provide definitive testimony on the patient's condition that was contrary to his published work on the subject. The second expert stated at trial that it could not have been an allergic reaction because the rash should have appeared sooner. However, articles published by that expert say little is known about the universe of allergic reactions to medications because so few incidents are reported, and very little is known about the effects of multiple drug use and allergic reactions.
What this means to you: "Frankly, it seems to me that the defense probably should have prevailed in this case," says John Metcalfe, vice president of Memorial Health Services in Long Beach, CA. "The plaintiffs' decedent had multiple maladies, and his overall care and treatment were obviously complicated. It is very questionable that the onset of the adult respiratory distress syndrome, which led to the patient's demise, was in any way connected to a possible sulfa-based medication allergy."
Conflicting expert opinions generally are not overlooked by juries or judges, particularly when the experts for one side of a lawsuit disagree with each other. It seems that the defendant was aware of the problem with his first expert, and it may have contributed to his not being available for trial. However, his damaging deposition statements already had been made.
Experts are hired for their opinions, and their opinions should be thoroughly explored before depositions are taken. Whenever discrepancies in expert testimony and writings are exposed, the expert is generally considered impeached, meaning the jury and/or judge doubts his or her word.
"The defense probably should have examined their experts more thoroughly prior to having them deposed and testifying. It is apparent to me that the defense employed weak and ambiguous clinical experts and failed to prepare a winning strategy," Metcalfe says.
"However, despite the seeming flaws in the defense experts, the case does profoundly demonstrate the difficulty of defending a case when there is an argument that a repeatedly professed medication allergy was ignored because the alternative medication would cost $3 a day more than the medication that was used. And although it seems that there was an appropriate process in place to overcome the restricted-drug policies, it was not utilized. Further, the facts present a case that the pharmacist was the only clinician that attempted to protect the patient from harm," he says.
"In summary, because the treating physicians were not in agreement about the patient's possible allergic reaction, the defense would require strong, unequivocal, confident, clinical experts to gain a defense verdict. Without this, it would be unwise to defend such a case at trial," adds Metcalfe.
Reference
Mary Ann & Dick Moore Jr., personal representatives of the estate of Dick Moore Sr., deceased v. U.S.A., Department of Veterans Affairs, U.S. District Count, District of Michigan, Case No. 97-CV-713.
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