Wrongful Death

June 1, 2018

Court Rejects Plaintiff’s Premises Liability Case in Recent Drug Overdose Case

Recently, a state appellate court issued a written opinion in a personal injury case brought by the parents of an 18-year-old man who died of an illegal drug overdose while at the defendant’s residence. The case presents interesting issues that may arise in Maryland personal injury cases in that it illustrates the well-known dangers of illegal drugs as well as touches on the theory of premises liability as it pertains to drug use in a defendant’s home.

The Facts of the Case

The plaintiff was the surviving loved one of a young man who died of an illegal overdose of illegally obtained drugs. The evidence presented at trial showed that the victim met up with one of the tenants who lived in the defendant’s home, purchased ketamine and acid, and brought the drugs back to the defendant’s home.

The facts were somewhat disputed, but it was uncontested that several people, including the plaintiffs’ son, took the ketamine. Within minutes, the plaintiffs’ son began acting odd, and he was told to leave by the tenants. The young man was found dead later that day. The cause of death was determined to be an overdose of ketamine.

March 15, 2016

Fatal Prescription Errors and Wrongful Death Lawsuits

by Lebowitz & Mzhen

Prescription drugs can be dangerous. Indeed, that is exactly why the government does not allow for them to be purchased over-the-counter and requires that a patient be prescribed the medication by a physician and then must pick up the medication at a pharmacy. The intent of creating a system like this one is that there are several lines of defense against a patient taking a medication that could be harmful to their health.

However, sometimes pharmacists make mistakes. The seriousness of pharmacy errors varies, but in many cases long-term and irreversible damage is caused by taking a non-prescribed medication. In other cases, a patient may die because of the side effects they experience from the prescribed drug or from the body’s reaction to not getting the medicine that they were prescribed. In these cases, the victim’s family may be able to pursue a case against the responsible pharmacist through a wrongful death lawsuit.

Wrongful death lawsuits seek compensation for the loss of a loved one due to a negligent action of another party. These cases are brought on behalf of the deceased, usually by a family member of the victim. In fact, one of the requirements of a Maryland wrongful death lawsuit is that it be brought by the proper party. Here in Maryland, that means that the lawsuit must be filed by a spouse, parent, or child of the deceased, if one exists. This category of people is called primary beneficiaries. If no primary beneficiary exists, then a secondary beneficiary may file the lawsuit. Establishing who qualifies as a secondary beneficiary can be tricky, but generally speaking that person must be related to the deceased by blood or marriage, and must have relied on the deceased for financial support.

January 30, 2014

Consulting Pharmacist Owed No Duty of Care to Nursing Home Resident Injured Due to Nurse’s Transcription Error

by Lebowitz & Mzhen

In order to recover damages for injuries caused by a pharmacy error, a plaintiff must prove that the defendant breached a duty of care that it owed to the injured person. A state appellate court ruled that the husband of a nursing home patient who died due to a medication error could not recover damages from a third-party pharmacy services company or the consulting pharmacist. Thompson v. Potter, 268 P.3d 57 (N.M. App. 2011). The patient’s death, according to the plaintiff’s complaint, was caused by a nurse’s transcription error that resulted in an incorrect medication dose. The court held that the defendants had no authority or control over the nurse, and that they therefore did not breach a duty of care directly to the decedent. With no duty of care, they could not be held liable for negligence or malpractice.

The patient was admitted to a long-term nursing care facility in Alamogordo, New Mexico in February 2004. Her doctor diagnosed her with early dementia and prescribed Ativan, an anti-anxiety medication, to manage her agitation and prevent seizures associated with dementia. The doctor instructed the staff to administer Ativan three times a day and on an as-needed (“PRN”) basis. On January 10, 2005, the doctor told a nurse to discontinue the PRN dose. The nurse transcribed the doctor’s order incorrectly, resulting in written instructions to discontinue the three-times-a-day Ativan dose. The patient missed twenty-one regular doses, suffered a grand mal seizure and a fractured hip on January 17, and later died.

The patient’s husband sued the company contracted by the nursing home to provide pharmacy services and its registered pharmacist, asserting causes of action for breach of contract, negligence, and negligence per se. He did not sue the nursing home, the doctor who prescribed Ativan and changed the dose instructions, or the nurse who made the transcription error. The plaintiff alleged that the sudden withdrawal of Ativan caused his wife’s seizure, and that the injuries sustained due to the seizure caused her death. The defendants breached a duty of care in their capacity as providers of pharmacy services, the plaintiff claimed. The trial court granted the defendants’ motions for summary judgment on all of the plaintiff’s claims.

January 22, 2014

Pharmacist Can Give Expert Testimony About Physician’s Duty to Obtain Informed Consent, Maryland Appellate Court Rules

by Lebowitz & Mzhen

A pharmacist may offer expert testimony in a wrongful death lawsuit regarding a physician’s alleged failure to obtain a patient’s informed consent, according to a ruling by the Maryland Court of Special Appeals. Fusco v. Shannon, 63 A.3d 145 (Md. Spec. App. 2013). The trial court excluded testimony from the plaintiffs’ expert witness, a pharmacist, holding that he was not qualified to offer an opinion on a physician’s professional duties. The case went to trial without the pharmacist’s testimony, and the jury found in favor of the defendants. The appellate court reversed the judgment and remanded the case to the trial court.

The decedent, Anthony Fusco, Sr., was eighty-two years old when he received a diagnosis of “low-risk” prostate cancer in 2001. By early 2003, he and his doctor decided to begin a course of treatment that included radiotherapy. He met with a doctor who explained the nature and risks of radiation treatments, including possible inflammation of surrounding organs. The doctor referred him to Dr. Shannon to prescribe a protectant medication to reduce the risk of radiation damage. Dr. Shannon prescribed Amifostine, and would later claim that he explained the risks associated with the drug, such as nausea, skin reactions, and blood pressure issues.

The Amifostine treatments began in April 2003 and continued for about a month. He received twenty-three injections, seemingly without incident, but on May 17, 2003, the day after receiving his twenty-fourth dose, Mr. Fusco was hospitalized with a severe skin reaction. He was diagnosed with Stevens-Johnson syndrome, a rare but serious skin condition, which Dr. Shannon suggested was a reaction to the Amifosine. After several hospitalizations, Mr. Fusco died of a stroke allegedly resulting from Stevens-Johnson on December 4, 2003.

November 6, 2013

Four Doctors Potentially Tied to 27 Prescription Medication Related Deaths

by Lebowitz & Mzhen

Federal investigators and prosecutors in Indiana believe that four doctors at various medical center locations may be responsible for having caused as many as 27 deaths.

The individuals who died were all patients at a group of clinics in the area. Two of the doctors accused of causing the deaths are also the co-owners of the locations. The charges include various drug and conspiracy charges. A federal Drug Enforcement Agency investigation filed some 95 felony charges against nine employees, which included the two doctor owners.

According to an affidavit, the clinic was known as a go to place for individuals seeking access to prescription medications. According to some individuals, it was sometimes referred to as “the candy shop.”

September 6, 2013

Near $1 Million Award in Unauthorized Palliative Care Death

by Lebowitz & Mzhen

A Harford County jury recently awarded nearly $1 million to the estate and surviving family members of a woman who allegedly received excessive pain medication following a leg ulcer surgery. pain%20medicine.jpg

According to reports regarding the case, the plaintiffs alleged that the doctors at the Harford County Hospital administered morphine, oxycodone, and other narcotics to the woman under the mistaken belief that they had received permission to provide palliative care to the woman, rather than attempting to strive for the woman’s full recovery. The hospital reportedly denies the allegations of negligence, and plans to appeal the judgment.

While only very limited factual information was reported regarding this case, it seems that the family is alleging that the hospital administered a form of unauthorized palliative care, which resulted in the death of the patient. Palliative care is distinct from assisted suicide, and as such is protected by U.S. Supreme Court case law. Essentially, it occurs when caregivers can no longer perform additional or helpful medical procedures to improve the patient’s prognosis, so they instead focus on alleviating the pain as best as they can. Oftentimes, these high levels of pain medications can lead to death.

November 30, 2012

Medical Malpractice Lawsuit Alleges that VA Doctors Overprescribed Antipsychotic Medications, Causing Woman’s Suicide: Grese v. United States of America

by Lebowitz & Mzhen

A woman’s lawsuit against the federal government alleges that incorrect diagnoses and incorrect dosages certain medications caused her sister’s suicide in 2010. The plaintiff in Grese v. United States is demanding $5 million in damages, claiming that doctors and other medical professionals with the U.S. Department of Veterans Affairs (VA) breached various professional standards of care by continuing to prescribe medications known to have harmful side effects after the decedent had already attempted suicide, and then by dispensing an excessive amount of a particular antipsychotic drug.

The decedent, Kelli Grese, committed suicide on November 12, 2010 by swallowing a large amount of the antipsychotic medication Seroquel. A few weeks before her death, according to the plaintiff’s complaint, doctors had increased her supply of the medication from thirty days to sixty days, and she almost immediately obtained a sixty-day supply. This gave her enough Seroquel to last 120 days under the earlier prescription, and it allegedly enabled her to commit suicide.

According to the Hampton Roads Daily Press, Grese was discharged from the U.S. Navy in 1997, and she began receiving treatment at the Hampton VA Medical Center during the 1990’s, with treatment for mental health issues beginning in 2008. She had diagnoses for post-traumatic stress disorder, depression, substance abuse, and attention-deficit disorder (ADD). The VA hospital treated her with counseling and medication. She received a diagnosis of severe depression in March 2009 after admission to a psychiatric hospital, with a designation as a suicide risk. She reportedly also suffered from paranoid delusions, recurrent psychosis, and major depressive disorder. After her discharge from the psychiatric hospital, the complaint alleges, the VA continued her existing treatment plan despite “obvious and clear deterioration in her psychological functioning.” Complaint at 4.

September 27, 2012

Insurance Company Denies Accidental Death Benefits, Arguing that Man’s Death from Medication Error Was Not an “Accident”: Estate of Paul v. New York Life Insurance Company

by Lebowitz & Mzhen

After a nurse’s medication error allegedly caused a man’s death, his executor claimed compensation under the Accidental Death Benefit (ADB) clause of his life insurance policy. The insurance company refused, arguing that the man’s death was not “accidental,” as defined by the policy. The executor sued, claiming in Estate of Paul v. New York Life Insurance Company that the insurer breached its contract with the estate. The trial court granted summary judgment for the defendant, and the New Jersey Appellate Division affirmed its ruling. The case offers a useful glimpse at how insurance companies view injuries caused by medication errors.

Richard Paul, the decedent, resided in a nursing home when he died. He was receiving treatment for multiple chronic illnesses, including chronic obstructive lung disease and chronic heart failure. A nurse at the nursing home accidentally administered another patient’s medication to him on December 27, 2007. The nursing home transferred him to an intensive care unit at a local hospital upon discovering the error, but his condition worsened. He died in the hospital on January 5, 2008.

Jeffrey Paul, Richard Paul’s son and the executor of his estate, retained a board-certified internal medicine specialist, Donald J. Corey, M.D., to review reports relating to Richard Paul. Although the death certificate identified lymphoma as the cause of death, Dr. Corey prepared two reports that challenged this conclusion. The first report said that the medication error had “a direct causative role” in Richard Paul’s death. The second report, completed a few months later, attributed his death to the nurse’s error and noted that Dr. Corey found no evidence of lymphoma recurrence.

March 22, 2012

Family of Woman Who Died After Receiving the Wrong Medication Sues the Pharmacy

by Lebowitz & Mzhen

The family of a Kentucky woman who died after allegedly receiving the wrong prescription medication has sued the pharmacy that dispensed the medication. The two medications have similar-sounding names but very different purposes. The family’s lawsuit alleges negligence and violations of state law that caused or contributed to the woman’s death.

Mary Moore, an elderly Louisville resident, had just been discharged from the hospital on November 10, 2010, where she had undergone treatment for congestive heart failure, kidney failure, and high blood pressure. She went to a Walgreens pharmacy to fill a prescription from her doctor for Hydralazine, a drug used to treat high blood pressure. The pharmacy instead gave her Hydroxyzine, an antihistamine considered unsafe for people over the age of 65.

Because of the alleged error, Moore’s high blood pressure was completely untreated for two weeks. The pharmacy discovered the error and gave her the correct medication, but by then the damage was done. Moore reportedly could not tolerate the prescribed dose of the blood pressure medication. According to the lawsuit, the medication could not control her blood pressure, and the stress on the heart caused “decompensation” of her congestive heart failure. This was followed by “decompensation of her chronic kidney disease.” Within a few days of starting the Hydralazine, Moore was hospitalized again. She died on December 6, 2010.

The lawsuit names as defendants both Walgreens and the pharmacist in charge at the time the medication was dispensed to Moore. Moore’s family primarily alleges that Walgreens and the pharmacist were negligent in dispensing the wrong medication. They further allege that, by not offering Moore counseling from a pharmacists when she picked up the medication, Walgreens violated state law. The law, according to their complaint, requires a pharmacist to offer a consultation with a patient picking up a medication for the first time. Had the pharmacist offered a consultation with Moore, the plaintiffs argue, one of them would likely have noticed the error with the medication
Hydralazine is a muscle relaxant used to treat high blood pressure and other conditions. It works by relaxing the blood vessels that allow blood free flow through the body. Hydroxyzine, on the other hand, is an antihistamine used to treat allergy symptoms of allergies such as itching, and to treat nausea-related symptoms resulting from conditions like motion sickness. The National Institutes of Health specifically recommend against the use of Hydroxyzine by people over the age of 65, noting that other medications offer similar benefits at a lower risk. In this case, though, the issue was not the treatment of allergies at all.

December 7, 2011

Hospital Patient Mistakenly Given Drug Used in Executions

by Lebowitz & Mzhen

The family of a south Florida man has filed a lawsuit against North Shore Medical Center in Miami. The man, 79 year-old Richard Smith, died in July 2010 when he went to the hospital complaining of shortness of breath and received the wrong medication. The nurse who administered the allegedly fatal dosage received disciplinary sanctions and paid a fine, which the family does not find satisfactory.

Smith told doctors he had shortness of breath and an upset stomach. His treating physician ordered Pepcid, an antacid available over the counter. The ICU nurse instead took a vial of Pancuronium from a locked cart and put it in Smith’s IV. Pancuronium is a muscle relaxant used by the ICU when intubating a patient. In larger doses, it is used by the Florida prison system in executions as part of a three-drug cocktail. The drug does not affect consciousness, but does significantly impair motor functions. At high enough doses, a person would not be able to breathe.

According to hospital records, no one noticed Smith’s condition for thirty minutes. When hospital staff finally recognized the problem, Smith’s heart had stopped. Resuscitation efforts did not succeed in reviving him. An investigation by the state found that the nurse on duty not only failed to read the label on the medication, but failed to scan both the drug label and Smith’s patient ID bracelet. These would have alerted the nurse to the problem. Another report indicated that the nurse did not follow safeguards established for the drug cart containing the Pancuronium. The state cited the hospital for this failure. The hospital has reportedly removed Pancuronium from most nursing areas in the hospital and created a new packaging system with clearer warnings.

According to local news covering the story, the nurse still works at North Shore. He reportedly received a reprimand, paid a $2,800 fine to the state, and attended remediation courses. The hospital described this as appropriate counseling and re-training. Smith’s family disagrees, saying through their attorney that the nurse should not still be permitted to work with patients. This Pharmacy Error Injury Lawyer Blog has previously reported on cases where medication errors causing death have led to criminal convictions for involuntary manslaughter. In this instance, the consequences apparently end at professional discipline.