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No Recovery for Fear of Future Infection Due to Reuse of Syringe


A woman underwent a laparoscopic cholecystectomy, a surgical procedure to remove the gallbladder. During the anesthetic induction, an assistant administered what she believed to be 4 milligrams of Zofran from a syringe that had a white label, handwritten on which was the letter “Z.” The medication had been drawn into the syringe by an anesthesiologist. White labels were typically used for Zofran.

 

After the medication was administered, and while the woman was moving from the preoperative stretcher to the operating-room stretcher, she became weak and was having trouble breathing. The assistant called for an anesthesiologist and assisted the woman with a bag mask. Subsequently, another anesthesiologist, came in and administered anesthesia medication to the woman.

 

The syringe with the white label actually contained Zemuron, a paralytic. Zemuron was normally labeled with a red label because it is a paralytic. The syringe had been used on a previous patient.

 

During the previous patient's induction, the assistant had disposed of a syringe of Zemuron because she had touched the cap. Subsequently, the anesthesiologist had drawn another syringe of Zemuron for the patient and put the Zemuron in the patient's top IV port, which was near the IV bag. Needles cannot be used in IV ports. Syringes are screwed into the port and the medicine is then pushed into the IV port. As the anesthesiologist was leaving the patient's room, he told the assistant to administer Zofran and that it was on top of the cart. The assistant administered Zofran to that patient and disposed of the syringe.

 

The first patient's medical records indicated that the medical history was negative for a history of HIV and hepatitis C. During the year following her surgery, the woman underwent routine testing for HIV and hepatitis C, and all of her tests were negative. The woman did not pay for any of the testing.

 

The woman sued the anesthesiologist, assistant, and anesthesiology practice group, alleging medical malpractice. Specifically, the complaint alleged that she had suffered extreme mental anguish, humiliation, embarrassment, and other injuries in that she was advised that she needed to have screening for HIV, hepatitis C or other infectious diseases, not only in the past, but for the future. Further, she was exposed to unknown pathogens as a consequence of the used syringe, and the needle attached thereto, and medication that remained in the syringe.

 

In his deposition, the anesthesiologist testified that there was no medical basis to conclude that the woman had any risk to develop an illness or infection, including hepatitis or HIV, as the result of the event forming the basis of this litigation. In her response to the health care providers’ motions for summary judgment, the woman did not present any evidence to establish that she had any risk of developing HIV, hepatitis C, or any other illness or infection as a result of the reuse of the previously used syringe and medication on her.

 

The Madison Circuit Court denied the health care providers’ motions for summary judgment. The health care providers sought a permissive appeal to consider the question of whether Alabama law permits recovery for fear of an injury that has not occurred, and where the expert testimony is undisputed that there is no medical basis to conclude that the plaintiff has any risk of incurring this type of injury in the future.

 

The Supreme Court of Alabama granted permission to appeal and reversed the trial court's denial of the health care providers’ motions for summary judgment. The court held that Alabama law does not permit a plaintiff to recover for fear of a future injury where she has not suffered any physical injury and where the undisputed expert medical testimony has established that there is no medical basis for concluding that she has a risk of developing any disease in the future.

 

While fear is a real phenomenon and can be debilitating, based on the evidence presented, the court concluded that the woman had not suffered any legally cognizable present injury. The court reasoned that there was no evidence indicating that the first patient had a communicable disease. The medical records indicated that the woman was advised of the first patient's negative test results. Additionally, the undisputed expert testimony established that there was no medical basis for concluding that the woman had a risk of developing any disease based on the use of the contaminated syringe. Finally, all of the woman's test results have been negative.

 

The Supreme Court of Alabama reversed the trial court's denial of the health care providers’ motions for summary judgment.

 

See: Laurel v. Prince, 2014 WL 1407231 (Ala., April 11, 2014) (not designated for publication).

 

See also Medical Law Perspectives, August 2012 Report: Anesthesiology Errors: Complications, Malpractice, and Catastrophe

 

See also Medical Law Perspectives, January 2012 Report: Hospital-Acquired Infections: Who Is Liable and Why?

 

 

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