Facts of the Case

In a recent case initially filed in Massachusetts state court but removed to the United States District Court for the District of Massachusetts, the plaintiff was a man who was prescribed the drug Levaquin for treatment of a head cold. Levaquin is a quinolone antibiotic also known as levofloxacin. When the plaintiff attempted to get his prescription filled at the defendant pharmacy, the pharmacist who was on duty received a “hard stop” warning on his computer indicating that the plaintiff was allergic to quinolones. The pharmacist looked into the matter further and saw that there was conflicting information that included a prior statement by the plaintiff to the effect that he “in fact had no quinolone allergy” and had been prescribed quinolones on multiple occasions in the past. As per the defendant’s policy in such situations, the pharmacist exercised his “individual judgment,” ultimately deciding to go ahead and dispense the Levaquin.

After suffering an allergic reaction to the medication, the plaintiff filed suit in state court, seeking $650,000 in compensation for his injuries. After the defendant removed the case to federal court, it moved for summary judgment. The district court found that the case had been properly removed to federal court based on diversity jurisdiction, despite the defendant’s meager settlement offer of $5,000. The court also agreed with the defendant that it was entitled to summary judgment on the plaintiff’s claims for negligence, breach of warranty, and unfair or deceptive practices in violation of Massachusetts General. The plaintiff sought appellate review. The Court’s Opinion on Appeal

The United States Court of Appeals for the First Circuit affirmed. With regard to the plaintiff’s motion to remand the matter to state court, the federal appeals tribunal first noted that there was complete diversity of citizenship (the plaintiff resided in Massachusetts and the defendant in Rhode Island). With regard to the amount in controversial requirement for diversity jurisdiction, the court observed that the plaintiff’s initial good faith demand for $650,000 was more than ample to qualify the case for diversity jurisdiction (the threshold was $75,000).

As to the plaintiff’s remaining arguments on appeal, the court ruled that the district court had acted appropriately in denying the plaintiff’s motion to depose a particular expert witness, given the plaintiff’s delay in seeking relief on this issue. The court also agreed with the lower tribunal’s decision to exclude another expert’s testimony because the expert’s opinion failed to meet the standard of admissibility on both the standard of care for a pharmacist and the likely cause of the plaintiff’s injuries. Finally, the court held that summary judgment to the defendant was proper on the plaintiff’s ch. 93A claim, given the failure of the plaintiff’s negligence and product liability claims.

Seek Legal Advice About a Misfilled Prescription Case

Just as doctors, nurses, and hospitals can be held accountable for professional negligence, pharmacies and drugstores can be subject to malpractice actions when they breach the standard of care that applied to a particular situation. If you have questions about a Cape Code pharmaceutical malpractice case, please contact the Law Offices of John C. Manoog III at 888-262-6664 or through this website. We look forward to hearing from you.

In a recent Massachusetts pharmacy error case, a 19-year-old patient died after she was denied a life-saving medication because her doctor had not completed a certain insurance form. The pharmacy claimed that it owed no duty to the patient under the circumstances, but the state’s highest court held otherwise.

Facts of the Case

In a recently decided appellate case, the plaintiff was the administratrix of the estate of a young woman who died after suffering a seizure in 2009. The plaintiff filed suit against the defendants, a pharmacy and others, seeking compensation for the young woman’s wrongful death and asking for punitive damages. The pharmacy moved for summary judgment, arguing that it had no legal duty to the deceased.

The plaintiff’s response to the pharmacy’s motion argued that the pharmacy had a legal duty, or voluntarily assumed such a duty, to notify the deceased’s treating physician of the need for the “prior authorization” required by her insurer, MassHealth, in order to fill the deceased’s prescription for Topomax, a medication that the deceased was prescribed to control life-threatening seizures. The trial court granted the motion. The plaintiff appealed. On its own initiative, the state’s highest court (the Supreme Judicial Court) transferred the case from the intermediate appeals court.

The Court’s Holding

Phrasing the issue as “whether a pharmacy has a legal duty to notify a prescribing physician when a patient’s health insurer informs the pharmacy that it requires a ‘prior authorization’ form from the physician,” the Massachusetts Supreme Judicial Court reversed the lower tribunal’s grant of summary judgment to the pharmacy and remanded the case for further proceedings.

According to the court, the evolving nature of the pharmacist-patient relationship between the deceased’s family and the defendant was such that the defendant owed a limited duty to take reasonable steps to notify both the decedent and her treating physician of the need for prior authorization each time the decedent attempted to fill her prescription. In so holding, the court noted that the defendant pharmacy held a “specific knowledge regarding the need for prior authorization, the industry-wide customs and practices of pharmacies handling prior authorization requests, and the foreseeability of the harm to [the decedent].”

Schedule a Consultation with a Cape Cod Wrongful Death Lawyer

Just as doctors, nurses, and hospitals can be held accountable for injuries to patients due to malpractice, pharmaceutical negligence can also result in monetary compensation for patients who are able to prove that they were owed a legal duty, that this duty was breached, and that they were harmed as a proximate result. To talk to a pharmacy negligence attorney who practices in the Cape Cod area, call the Law Offices of John C. Manoog, III, at 888-262-6664. We have offices in Hyannis and Plymouth, and there is no charge for the initial consultation.

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In an average one-year term, the United States Supreme Court receives around 10,000 petitions for review. However, in most cases, the Court has discretion as to whether to accept a case for appellate review, and an average of around 75 or 80 writs of certiorari granting review are handed down annually. Many of the cases for which certiorari is granted arise from the federal court system, but there are also some that have their origin in one of the state courts.

Recently, the defendant in a case that originated in the Massachusetts state courts sought review from the nation’s high court. Aggrieved by the Massachusetts Supreme Judicial Court’s decision to affirm a trial court’s entry of judgment on a multi-million dollar verdict in a product liability lawsuit against it, a multinational pharmaceutical manufacturer sought a writ of certiorari of the state court’s April 2015 decision in Reckis v. Johnson & Johnson.

The State Court Case

At the state court level, the defendant had argued that the trial court erred in entering judgment against it because the plaintiffs (who claimed their daughter developed a life-threatening skin disorder after taking Children’s Motrin in 2003) had failed to prove causation, because their failure to warn claim was preempted by federal law, and because the jury’s award was excessive. The Massachusetts Supreme Judicial Court rejected all of these arguments and affirmed the trial court’s order.

The Defendant’s Basis for Certiorari

Johnson & Johnson argued that the Massachusetts state courts’ opinions had been contrary to a prior decision of the United States Supreme Court (Wyeth v. Levine (2009)), which it urged did not adequately define the “clear evidence” standard, allowing lower courts to hold defendants subject to inconsistent and unreasonable verdicts.

Earlier this month, the Court officially denied the Johnson & Johnson request for review, thus ending the case once and for all. Interestingly, the original verdict stood at $63 million, but Johnson & Johnson is now liable for approximately $140 million due to the accumulation of interest.

According to court documents and testimony at the trial, the illness caused by the child’s exposure to Motrin left her blind and caused her to lose approximately 90% of her skin. It also reduced her lung capacity by 80%.

To Speak to an Experienced Massachusetts Injury Attorney

If you have been hurt by a dangerous product or an act of negligence, you need advice from a dependable and reliable source. The Law Offices of John C. Manoog, III, can help you make an informed decision as to whether to go forward with litigation against the responsible party. To schedule an appointment with a knowledgeable Massachusetts products liability attorney, call us at (888) 262-6664 and ask for a free and confidential case evaluation. We have offices in both Hyannis and Plymouth.

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The case was originally filed in a federal court in California in May 2013 and sought certification as a class action lawsuit. It was moved to the United States District Court for the District of Massachusetts by the Judicial Panel on Multidistrict Litigation because of ongoing multidistrict litigation there concerning Lexapro.

Allegations in the Plaintiffs’ Complaint

The plaintiffs in the case were parents whose adolescent son was prescribed Lexapro for depression in April 2009. The basis of their complaint was that the defendant pharmaceutical company omitted material efficacy information in violation of California state consumer protection laws. They averred that Lexapro’s label overestimated the effectiveness of the drug, thereby misleading both the parents and their son’s doctor. According to the parents, the federal Food and Drug Administration (FDA) accepted questionable and flawed data offered by the pharmaceutical company regarding Lexapro’s effectiveness for the treatment of adolescent depression. The parents further averred that Lexapro is, in actuality, “no more clinically effective than a placebo.” They sought to certify a class of all Californians who purchased Lexapro for an adolescent from March 2009 until present.

The Defendant’s Motion and the District Court’s Order

The pharmaceutical company sought dismissal of the parents’ complaint, arguing that the suit was precluded by the California safe harbor doctrine or preemption under the federal Food, Drug, and Cosmetic Act (FDCA). The district court dismissed the complaint solely on the basis of the California’s safe harbor doctrine, and the parents appealed.

The Decision on Appeal

The United States Court of Appeals for the First Circuit affirmed the trial court’s dismissal of the parents’ complaint but relied solely on federal, rather than state, grounds. Expressing no view on the California safe harbor doctrine’s applicability, the court found that federal law impliedly preempted the parents’ claims because the FDCA prohibited the pharmaceutical company from independently changing its FDA-approved label, as the parents claimed California law required.

According to the appellate court, it made more sense to review the issue in terms of federal law first, instead of either interpreting California state law on the issue or certifying the issue to the California Supreme Court. Since the parents’ complaint was preempted under federal law, the appellate court found that it was unnecessary for it to reach the state law question.

To Speak to an Experienced Product Liability Lawyer Product liability litigation can be complex, involving multiple defendants and a wide array of issues. If you believe that you or a loved one has been hurt because of a defective product, you need to speak to an attorney who can guide you through the process of holding those who designed, manufactured, or sold the product accountable. The Law Offices of John C. Manoog, III can assist you with your case. Call us at (888) 262-6664 to schedule a free initial consultation. Our Cape Cod attorneys handle cases in Hyannis, Plymouth, and throughout Massachusetts. If you are not able to come into the office, we can usually arrange for a home or hospital visit to discuss your case.

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Sometimes, the duty is obvious, such as in car accident cases in which drivers owe one another a duty to exercise due care when operating a vehicle. In such cases, the dispute usually centers on whether the duty was breached and, if so, what compensation is due to the plaintiff.

There are some cases, however, in which the issue of duty is a more complicated question. Recently, the Supreme Judicial Court of Massachusetts was asked to decide whether a Massachusetts hospital had a duty to patients of a doctor who left its employment and moved to another state.
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The Facts of the Case

According to the plaintiffs in Roe v. Children’s Hospital Medical Center, the defendant hospital hired a certain pediatric physician in 1966. After leaving the defendant’s employment in 1985, the doctor relocated from Massachusetts to North Carolina. In 2009, he surrendered his medical license after it was alleged that he had performed genital examinations on several patients in North Carolina when such exams were not medically necessary.

The plaintiffs, 11 former patients of the doctor in North Carolina, filed suit against the Massachusetts hospital that once employed him, alleging that the hospital failed to properly train, supervise, and discipline the doctor during his Massachusetts employment, that it knew or should have known that he was performing genital examinations on minors in an inappropriate manner during that employment, and that it failed to report his conduct to the appropriate licensing authorities and to his North Carolina employer.

In particular, the plaintiffs pointed to an incident in 1967 in which a mother reported that the doctor had inappropriately examined her son and to several lawsuits against the doctor following his departure from the defendant hospital. According to the plaintiffs, as a result of the defendant’s negligence, the doctor was able to continue his abuse of patients, including the plaintiffs, after moving his practice to North Carolina.

What the Court Decided

The trial judge dismissed the plaintiffs’ complaint, saying that public policy did not support imposition of a duty that would expose an employer to liability for future potential abuse on unknown persons by a former employee outside the state. On appeal, the court affirmed, agreeing with the trial court that the defendant hospital did not owe a duty to the plaintiffs because the hospital did not have any type of “special relationship” with the doctor or his prospective patients.

Although the defendant did have a legally cognizable duty to prevent harm to its own minor patients, that duty did not require it to protect potential future plaintiffs in other states.

What to Do if You Think You Have a Case Against a Medical Professional

The Law Offices of John C. Manoog, III, handles a wide variety of negligence lawsuits, including pharmaceutical and medical malpractice cases. To schedule an appointment to discuss your case with one of our experienced legal professionals, phone us at (888) 262-6664, or use the online contact form on this website. We are currently accepting clients in the Plymouth, Hyannis, and greater Cape Cod areas.

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The plaintiffs in the lawsuits allege they or a family member suffered cardiovascular or other heart problems after being administered GranuFlo or NaturaLyte during dialysis.

In a 2012 recall of both Naturalyte and Granuflo Acid Concentrate, the manufacturer cautioned clinicians to be aware of the concentration of acetate or sodium diacetate in the products because of the possibility of high serum bicarbonate level in patients undergoing hemodialysis in certain situations. According to the recall, improper use of Naturalyte and Granuflo could contribute to metabolic alkalosis. Patients with metabolic alkalosis are at significantly higher risk for several serious medical conditions, including hypokalemia, low blood pressure, cardiac arrhythmia, hypoxemia, and hypercapnia. If not treated appropriately, cardiopulmonary arrest could result.

The Intended Purpose of the Drugs

Naturalyte and Granuflo were designed to aid in the treatment of renal failure, both chronic and acute, resulting from hemodialysis. They are supposed to be used with a three-stream hemodialysis machine calibrated for acid and bicarbonate concentrates.

What Went Wrong

It is alleged that the drugs in question may increase a patient’s risk of cardiac arrest if not prescribed appropriately. Many of the lawsuits against the manufacturer assert that it did not adequately warn doctors that the products contain a comparatively high level of a substance that the human body converts to bicarbonate, high levels of which may be linked to problems with the heart.

Earlier this year, a Class 1 recall of NaturaLyte Liquid Bicarbonate Concentrate was issued by the U.S. Food and Drug Administration (FDA). According to the FDA, Fresenius Medical Care North America issued the recall notice because bacterial contamination of the dialysate may lead to bacteremia or systemic infection. The bacteria was identified as Halomonas (species 1, 2, 3).

How to Get Help if You Have Been the Victim of Dangerous Prescription Medicine

At the Law Offices of John C. Manoog, III, we understand that victims of defective products, such as prescription medications, have a lot of questions about not only their health and prognosis following their injuries but also what they can do about them in a court of law. We are here to help you as you work through the issues that surround your case. Call us at (888) 262-6664 or contact us online to schedule an appointment. We also handle medical malpractice and improperly filled prescription cases.

There is no charge for the first visit, and many cases are accepted on a contingency fee basis, meaning we don’t get paid until your case settles or a judgment is paid. We serve injured people throughout the Cape Cod area, including both Plymouth and Hyannis.

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Prescription drug abuse in the U.S. concerns many healthcare and law enforcement agencies. Overdoses involving prescription drugs have soared in recent years. A 2009 study by the Centers for Disease Control (the “CDC”) indicated that, for the first time, prescription drugs have surpassed all other drugs as the biggest cause of drug overdoses. The CDC has also found that the increased rate of drug induced fatalities have nearly doubled since 2000 while equivalent rates for homicides, motor vehicle fatalities, and firearm fatalities have all dropped.

The National Drug Take-Back Day is one way of removing these dangerous drugs from the public and preventing abuse. Once prescription drugs are no longer needed, patients are reluctant to dispose of them in the trash or flush them down the toilet because of environmental concerns. Keeping our landfills and water free from drugs and chemicals ensures the health and safety of our natural resources. Returning prescription drugs to a Take-Back Day program is the most environmentally protective way to dispose of unused medications.

Because of the difficulty of disposing prescription drugs, many prescription drugs remain left in bathroom cabinets, kitchen cabinets and bedside stands. Left in these places, they are susceptible to abuse by teens and adults who may be addicted to prescription drugs. According to the DEA, hundreds of thousands of pounds of prescription drugs are turned over annually to the program.

Recalled drugs are one source of unused drugs. A recall is where a prescription drug that had subsequently been found to be safe is later recalled when new evidence uncovers serious health risks associated with the drug. The U.S. Food and Drug Administration (the “FDA) has already listed more than 50 recalls in 2013 alone. When a recall is issued, not every patient returns or disposes of the drug correctly leaving many drugs in the public for potential prescription drug abuse. In addition, many of these recalled drugs cause injury or death before the recall, and sometimes patients continue to take a drug after a recall because they are not aware of the recall.

The reason for the alarming number of recalls might be because of the initial safety testing. Just because a drug meets the FDA standards for testing does not necessarily mean that the drug is safe. The testing labs that do the FDA testing are largely funded by the pharmaceutical companies giving the labs a perverse incentive to pass along questionably safe drugs.

Whatever the source of the alarming number of prescription drug overdoses, we appreciate local law enforcement’s participation in a campaign to remove these drugs from society and educate the public about prescription drugs. While the Drug Take-Back Day focuses on drug abuse, many of the rising number of fatal overdoses were the result of recalls or improperly filled prescriptions. As experienced improper prescription medical malpractice attorneys, we have seen first hand the injuries and pain associated with prescription drugs. Overdoses, injury, or death resulting from prescription drugs can cause physical, emotional, and financial difficulties. We understand that most doctors correctly prescribe drugs; however, not all doctors obey the rules or act carefully. If you or someone you love have been harmed by an improperly filled prescription drug, you are encouraged to speak to an attorney experienced in improper improperly filled drug cases.

Local attorney, John C. Manoog III, has extensive experience handling improperly filled drug cases for injured victims in Cape Cod. For a free initial consultation, call the office at 888-262-6664 or reach us by email. There is always someone available to talk to you about your case.

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