Wednesday, May 12, 2010

Five Hundred Million More Reasons For Tort Reform

A jury in Las Vegas has awarded a couple $500,000,000 in punitive damages after the husband contracted hepatitis C following a routine colonoscopy.  The companies named in the suit , Teva Parenteral Medicines and Baxter Healthcare Corp. are the manufacturers of propofol, the anesthetic used during the procedure.  The anesthesiologist at Desert Shadow Endoscopy Center had been using the same bottle of propofol for multiple patients.  The victim, Henry Chanin, a headmaster at a private school, had already received $3.25 million from the same jury while his wife was awarded $1.85 million from the pharmaceutical companies for "breach of implied warranty and failure to warn".  Said their lawyer, Robert Eglet, "We're hoping that it sends a message to these drug companies that they need to come here to Las Vegas with the right people and sit down and get these cases resolved."

How much more evidence do we need that this country needs tort reform immediately?  First of all, the punitive damages will certainly be shot down.  According to U.S. Supreme Court guidance, the punitive award should be no greater than nine times actual damages, so the Chanins will probably get no more than $45 million.  Of course Mr Eglet will walk away with about $15 million for his troubles out of that reduced amount. 

The drug companies had previously offered to settle with the Chanins for $1.7 million.  That was already a generous amount of money considering there was nothing wrong with the propofol or the manufacturing of the drug.  The culprit was the doctor who was in essence sharing the same needle with multiple patients.  Any CA1 anesthesiology resident will tell you that you shouldn't share the same syringe of propofol between multiple patients and that any propofol withdrawn from the bottle should be discarded after six hours.  But the doctor's malpractice insurance probably wasn't going to pay much more than $1 million.  Therefore legal logic says to go after the deep pockets of international drug manufacturers regardless of their culpability.

Teva and Baxter were not allowed to present evidence that the same syringe of propofol was used for multiple patients.  They also were prevented from showing the warning labels already in place against using propofol over multiple patients. The bottles clearly say single patient use only.  The Chanins' lawyer maintains that the propofol was manufactured in a size too large for single use, encouraging their use over multiple patients.  Say what?!  It is up to the physician using the drug to decide how much to use and for whom.  The only responsibility of the drug companies is to make the propofol in a sterile condition at the proper concentration.  How it is used after it leaves the factory is up to the caregiver, for good or bad.  If this verdict holds up, theoretically, Michael Jackson's estate could sue Teva and Baxter for making a "defective" product despite the fact that it was not used as instructed. 

Lucky for Mr. Eglet, this is just the first of 40 patients who contracted hepatitis C that he is representing.  If this lawyer wins many more suits against the propofol makers, they could theoretically go bankrupt and deprive all of us of this wonderful breakthrough anesthetic.  Then we'll see how patients like it when we go back to Versed and Demerol for sedation, or god forbid, pentathol. 

The 2010's are going to be very good years for this lawyer.  And very bad years for legal sanity.

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