Latex allergy victims score more legal victories
November 1, 2000 5 minutes read
Latex allergy victims score more legal victories
CA jury awards $1 million; WI case upheld
Health care workers suffering from latex allergies have won legal victories in Wisconsin and California, setting precedents as the first of hundreds of other cases prepare to go to trial.
Health care workers across the country have sued latex manufacturers, asserting that a hazardous product triggered severe reactions that prevented them from working. Those initial cases highlighted the risks associated with high-protein, powdered gloves.
In Milwaukee, a state appeals court upheld the first major latex product liability award, a $1 million judgment against British manufacturer Smith & Nephew PLC. The manufacturer has appealed to the state’s Supreme Court.
"It’ll be cited by lawyers who represent health care workers," even in other states or federal court, says Robert Habush, an attorney who represented radiologist Linda Green. "It’s certainly a decision that will be given some recognition."
In Freemont, CA, a jury awarded almost $1.13 million to a respiratory therapist who developed a severe form of latex allergy, finding that Baxter Healthcare Corp. manufactured defective gloves. (Baxter’s glove division was later spun off to Allegiance Healthcare Corp. in McGaw Park, IL.)
The California jury decided that the employee and hospital were each 15% responsible for the respiratory therapist’s condition. The hospital, which was not a part of the suit, will not have to pay any of the cost, but the finding reduces Baxter’s payment under California law.
Donna Gaidamak, an Allegiance spokeswoman, notes that many other cases have resulted in judgments in favor of manufacturers. "The product itself was not defective." She adds that latex is a naturally occurring substance. "We did not take any shortcuts in our [manufacturing] practices."
The cases indicate that juries are sympathetic to the plight of health care workers who develop severe latex allergies, says Steve Cooperstein, a Philadelphia lawyer who represents several health care workers in federal latex cases.
"Jurors are recognizing that those people arrived at their injuries by going to work everyday. That is an appealing theme to jurors," he says. "Here is just an average everyday person with a responsible job. Through no fault of her own, she winds up with a significant allergy that impairs [her] life to a certain extent."
The cases also should send a cautionary message to hospitals, asserts Jon L. Gelman, an attorney in Wayne, NJ, who writes a workers’ compensation newsletter for West Publishing Group and represents latex plaintiffs. "It comes to a point where [hospitals] are going to have enough knowledge in front of them [about latex sensitivity to know] that they’re not maintaining a safe workplace. If they don’t do that, they’re negligent."
The recent legal cases focus on certain characteristics of latex gloves — high protein and allergen content, which can become airborne in glove powder — that trigger allergies among susceptible individuals.
This year, the Food and Drug Administration (FDA) issued a proposed rule that would require manufacturers to list the protein and powder content of gloves. The agency asserts that the labeling will lead to a decline in protein and powder content, while allowing hospitals to select the brands least likely to lead to sensitization. The National Institute on Occupational Safety and Health and the Occupational Safety and Health Administration both recommend the use of nonpowdered gloves.
But when glove use rose dramatically in the 1980s in the wake of the AIDS epidemic, lawyers for allergic health care workers say that manufacturers failed to take simple steps that would have lowered the protein levels.
"Had they taken steps to remove more of the proteins before the gloves got to the consumer, it would have increased the chances that the individual would not be sensitized," says Cooperstein.
In 1998, the FDA also required manufacturers to place a warning on glove boxes. Again, plaintiff lawyers say manufacturers should have acted on their own. "Because the companies knew that the gloves posed a risk of sensitizing people, we allege they should have taken steps much earlier to put a warning on the boxes themselves to alert the user to the risk," says Cooperstein.
These arguments have so far found favor with juries. In 1998, a Milwaukee jury agreed that radiologist Linda Green became latex sensitive from exposure to a "defective and unreasonably dangerous" product.
Various studies show that 8% to 12% of health care workers are allergic to latex. In August, the Wisconsin appeals court found that a product can be defective even if the defect affects some, but not all, consumers.
Green testified that she changed gloves 20 to 40 times a day. By 1991, she had developed cracking, soreness, and peeling of her hands, and she was diagnosed with latex sensitivity. Her symptoms worsened, as she began to have cold-like symptoms that evolved into breathing difficulties. The episodes became increasingly serious until she was hospitalized.
Green no longer works in the health care industry, and she told the jury that she had to be constantly vigilant to avoid even a minute’s exposure to latex. "I can’t eat out much or buy things that I don’t know about because I don’t know that they weren’t prepared with people using latex gloves," she testified, adding that she carries an epinephrine injection kit.
The appeals court stated: "We cannot say in light of all of her suffering and in light of the substantial detour that her life and her lifestyle has had to take that the jury’s assessment of $584,000 for past and future pain, suffering, and disability shocks the judicial conscience."
Green also was awarded more than $400,000 for past and future medical expenses, lost earnings, and lost future potential earnings.
The California case largely mirrored the Green case, asserting a similar defective product argument. Christine McGinnis, a respiratory therapist, testified that from 1991 to 1996 she wore up to 50 pairs of gloves a day. Like Linda Green, she developed increasingly severe reactions and was forced to leave the health care profession. With the jury finding that she and her employer, St. Joseph’s Hospital of Stockton, shared some responsibility, her actual award totals about $878,000 for lost wages, medical expenses, and suffering.
The lawsuits and jury awards are contributing to a swift movement toward safer products, say advocates for latex sensitive individuals.
"There already have been changes and recognition of the disease," says Habush. "I think the litigation has gone a long way toward improving the safety of hospitals."
"This is an extremely potent allergen," says Lise Borel, DMD, national director of ELASTIC, an organization founded by latex sufferers. Borel is a former dentist who was unable to work due to a severe latex allergy. "This is for the most part preventable. I hope manufacturers will work to prevent future sensitizations."
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