Medical Risk Law Weekly News

Week of: August 27, 2012


FDA Warns of Risk of Death from Codeine Use in Some Children Following Surgery

The FDA issued a Drug Safety Communication concerning three children who died and one child who experienced a non-fatal but life-threatening case of respiratory depression after taking the pain reliever codeine following surgery to remove tonsils (tonsillectomy) and/or adenoids (adenoidectomy).


CDC Recommends All Baby Boomers Receive One-Time Hepatitis C Test

All U.S. baby boomers should get a one-time test for the hepatitis C virus, according to final recommendations published by the Centers for Disease Control and Prevention. One in 30 baby boomers – the generation born from 1945 through 1965 – has been infected with hepatitis C, and most don’t know it. Hepatitis C causes serious liver diseases, including liver cancer (the fastest-rising cause of cancer-related deaths) and is the leading cause of liver transplants in the United States.

Bone Putty Recalled As Putty May Ignite During Surgery

Synthes Hemostatic Bone Putty is the subject of a Class I recall because there is the potential for it to ignite if contacted with electrosurgical cautery systems under certain conditions during surgery.

Cantaloupe Recall Expanded, Honeydew Melons Added Due To Possible Listeria Contamination

Burch Equipment LLC, North Carolina, is expanding its recall to include all of this growing season's cantaloupes and honeydew melons that may remain on the market because they may possibly be contaminated with Listeria monocytogenes.


Screening Panel Required To Evaluate Non-Party Physician’s Negligence Prior To Trial Against Hospital When Physician Acted As Apparent Agent of Hospital

While recovering from surgery, a hospital patient developed a bedsore. The doctor on call for the surgeon who performed the surgery was responsible the patient’s care while the surgeon was away. The surgeon and the on-call doctor were partners in an independent, private medical practice with privileges to treat patients at the hospital. They were not employees of the hospital. When the surgeon returned to the hospital two days later, he was surprised that the patient had developed a bedsore. The bedsore worsened over time, eventually requiring specialized treatment and over four months to heal.


To comply with a Maine law requiring that a prelitigation screening panel evaluate a physician's alleged professional negligence before consideration at trial, the plaintiffs filed a notice of claim. The notice of claim named the hospital and its agents and employees as parties based primarily on the conduct of the nurses who treated the plaintiff patient. The notice of claim also named the surgeon who performed the surgery. The notice did not name the on-call doctor or assert that she had engaged in professional negligence that was a proximate cause of the patient’s injuries. The claim proceeded through the prelitigation screening panel hearing process during which the on-call doctor's actions were not made an issue and she was not called as a witness.


The patient and his wife sued the hospital.

Pennsylvania Allows Jury Instruction with Intent Language in Medical Battery When Patient Refused Consent for Cesarean Section Surgery

A woman in her twenty-seventh week of pregnancy fell down the stairs at her home. She called her obstetrician who suggested she go to the hospital for some tests. At the hospital a test revealed the fetus had an abnormally low heart rate. The obstetrics resident on duty diagnosed the fetus with a life-threatening bradycardia and concluded that an emergency Cesarean section was necessary.


The woman, being a physician herself, believed the fetus could be experiencing an arrhythmia, which would not require surgical intervention. The obstetrics resident consulted with the woman’s treating obstetrician, who said they should proceed with the surgery. The woman alleged she refused to give consent. The obstetrics resident alleged she received oral consent from the patient prior to conducting the emergency Cesarean section and delivering the child.


The woman and her child sued the doctors and hospital for medical battery for conducting a Cesarean section after twenty-seven weeks of pregnancy without the woman’s consent.

Even Though Claim Sounded in Medical Negligence Expert Testimony Unnecessary When Patient Qualified To Testify After Doctor Failed To Inform of Risk of Ovarian Cancer

A woman with a family history of breast cancer underwent a bilateral mastectomy to reduce her cancer risk. Over twenty years later she was diagnosed with a uterine fibroid condition caused by painful, but ordinarily noncancerous, tumors. The woman elected to undergo a partial hysterectomy which entailed removing her uterus, but not her cervix or ovaries.


The defendant obstetrician and gynecologist consulted with her prior to performing the procedure. The obstetrician and gynecologist explained that, the woman’s family history of breast cancer, without more, did not indicate that she was at an increased risk of ovarian cancer. At that time, the plaintiff did not have ovarian cancer. The doctor told her that her ovaries were healthy, that there was no reason to remove them, and that removal would result in negative side effects. The obstetrician and gynecologist subsequently performed the partial hysterectomy without complications.


Approximately one year after the surgery, the woman was diagnosed with late stage, terminal, ovarian cancer, which had spread to her abdomen. Had the obstetrician and gynecologist prophylactically removed the woman’s ovaries at the time he performed the partial hysterectomy, she would not have developed the cancer.


The woman sued the obstetrician and gynecologist for negligence resulting in her developing ovarian cancer.