2010 April Archive

Wal-mart Pharmacist May Be Liable for Punitive Damages, Court Rules

The United States District Court for the District of New Jersey has denied a request from Wal-mart pharmacist, and Wal-mart itself to dismiss a plaintiff’s claim for punitive damages in a lawsuit filed by the plaintiff alleging that the pharmacist filled a prescription in error. In Horn v. Wal-Mart Stores, Inc., 2009 U.S. Dist. LEXIS 113867. Wal-mart’s request for Partial Summary Judgment in their favor and against the plaintiff on the plaintiff’s request for punitive damages was denied. In so doing, the Court acknowledged that punitive damages are available to plaintiffs when the defendant acts with a “wanton and willful disregard” for the rights of a plaintiff, that is, with a reckless indifference to the consequences of his actions.

Here, Mr. Horn went to Wal-mart to have a prescription for Coumadin, a blood-thinner, filled. However, the pharmacist attached a label to the bottle of medication which instructed the plaintiff to take the medication in a dosage three times greater than was prescribed, which he did – resulting in the patient suffering a stroke with permanent consequences.

The pharmacist, Arnold Beilin, testified he was: aware excess dosages of medication could cause harm; that Coumadin was a medication where even a small dosage error can cause serious harm to a patient; that he did not know the safe loading dose of Coumadin and that the lack of that knowledge put the patient at a risk for harm; that he over-road the store’s computer program warning that instructed him to check with physician to verify the correct dosage of the medication; and, that after rover-riding the store computer’s warning system, he dispensed the medication to Mr. Horn. Under these circumstances, the Court stated, a reasonable jury could find that Wal-mart pharmacist acted with a willful and wanton disregard for the safety of plaintiff, and, is permitting the plaintiff to go to proceed to trial on both his punitive damages and his general damages claims.

A Defendant in a Medical Malpractice Case Cannot Use a Member of a Plaintiff’s Treatment Group as an Expert Witness against Him

Can a defense lawyer contact someone affiliated with your treating doctor’s medical group and use them as an expert witness against you? No, they cannot, according to a recent Appellate Division decision in Carchidi v. Iavicoli, 2010 N.J. Super. LEXIS 46, decided March 24, 2010.

In Carchidi, the infant plaintiff was born three months premature at Cooper University Hospital in 2000. He suffers from cerebral palsy which his parents contend was caused by doctors at Cooper who failed to administer steroids prenatally, and, take other measures to delay the plaintiff’s premature delivery. Beginning in 2001, the plaintiff began treating with a child neurology group at Children’s Hospital of Philadelphia (CHOP), primarily under the care of Dr. Dennis Dlugos. The infant has also had occasion to visit the ER at CHOP for emergency situations. In addition, the child has had brain imaging studies (MRIs) performed at CHOP in 2003 and 2009, which were interpreted by members of the hospital’s neuroradiology group. Lastly, plaintiff’s mother, is a nurse at CHOP.

The attorney for Cooper sought to utilize two senior physicians at CHOP, Dr. Robert Clancy – a neurologist, and, Dr. Robert Zimmerman – a renowned pediatric neuroradiologist, as expert witnesses against the plaintiffs, whose role would be to establish that plaintiff’s injuries were not caused by negligence of the doctors at Cooper in allowing the plaintiff to be born prematurely, but from a cerebral artery infarction related to a maternal infection (chorioamnionitis).

In deciding for the plaintiffs and against Cooper, the Court ruled the potential prejudice to plaintiffs in allowing Cooper to use senior physicians, who are members of the very treating group where the plaintiff receives care, is so significant that the use of such experts must be barred. This will prevent a jury from being “told by senior members of plaintiff’s treatment team with supervisory and managerial authority and teaching responsibility within that team, that plaintiff’s experts are wrong in their assessment of the cause of plaintiff’s injuries.”

Similarly, the use by the defense of experts from CHOP has the capacity to adversely affect the plaintiff’s patient-physician relationship with his treating doctors. The Court stated that a patient has a “right to expect loyalty from his treating physician and should be able to place trust in that physician,” and, that those qualities would be undermined if a defense attorney were allowed to enlist members of a patient’s treatment team against him in a lawsuit.