Medical Risk Law Weekly News

Week of: September 02, 2012


Electronic Infusion Pump Recalled For Motor Stalls Potentially Causing Fatal Injuries

The CareFusion Alaris Pump Module, model 8100, is subject to a Class I recall because CareFusion has received reports of customers experiencing motor stalls during infusion. Most of the motor stalls reported have occurred at high infusion rates (typically over 900 ml/hr). However, the possibility of motor stall occurrence at lower infusion rates cannot be ruled out. When a motor stall occurs, the Alaris PC unit and the Alaris Pump Module display the visual error code 242.4030 with an audible alarm that is followed by a termination of infusion. Termination of infusion, especially in high risk patients, could result in serious injury or death.


Lead Poisoning Found in Pregnant Women Who Used Ayurvedic Medicines from India

Lead poisoning still occurs in the United States despite extensive prevention efforts and strict regulations. Exposure to lead can damage the brain, kidneys, and nervous and reproductive systems. Fetal exposure to lead can adversely affect neurodevelopment, decrease fetal growth, and increase the risk for premature birth and miscarriage.


In 2011 and 2012, the New York City (NYC) Department of Health and Mental Hygiene (DOHMH) investigated six cases of lead poisoning associated with the use of ten oral Ayurvedic medications made in India. All six were foreign-born pregnant women assessed to be at risk for lead exposure and tested by providers during routine prenatal visits per New York State law. Their blood lead levels (BLLs) ranged from 16 to 64 micro gram/deciliter. Lead concentrations of the products were as high as 2.4 percent. Several also contained mercury or arsenic. Heavy metal exposure can increase the risk of adverse health effects for both mother and child. All but two of the products were purchased in India.

Bagged Salad Recalled Due to Possible Listeria Contamination

Dole Fresh Vegetables voluntarily recalled 1,039 cases of bagged salad due to a possible health risk from Listeria monocytogenes. The product being recalled is 10 oz. Dole Italian Blend coded 0049N2202008, with a Use-By date of August 20 and UPC 7143000819.

Protein Shakes Recalled Due to Possible Botulism Contamination

Four Protica Inc. products including Body Choice "Protein Shots," Nutritional Resources "Protein Wave," ProBalance "Protein to Go French Vanilla Latte," and "Protein to Go Milk Chocolate Shake" are subject to a voluntary recall because they have the potential to be contaminated with Clostridium botulinum, a bacterium which can cause life-threatening illness or death. Consumers are warned not to use the product even if it does not look or smell spoiled.


Agent With Limited Power of Attorney Cannot Bind Principal to an Arbitration Agreement With Nursing Facility Unless Expressly or Apparently Authorized

In 1998 a woman signed a power of attorney naming her daughter as her agent. Upon admitting her mother to a long-term care facility in 2006, the daughter signed an arbitration agreement along with other documents as part of the admissions agreement. The mother spent the last months of her life at the long-term care facility.


The woman’s daughter, as executrix of her estate, sued the long-term care facility for negligence by the facility's staff and the facility’s management’s breach of statutes regulating the provision of nursing home services resulting in injuries to the woman and in her wrongful death.

Probationer Lacks Standing to Sue, Fails to State a Claim Against Alcohol Testing Company for False Positive Test Resulting in Probation Revocation

As a term of his probation, a man submitted his urine to the defendant drug and alcohol screening company for an Ethyl Glucuronide/Ethyl Sulfate (EtG/EtS) Test, which indicates the presence of the metabolites of ethanol. The presence of these metabolites over a certain amount indicates the intentional consumption of alcohol. The man’s urine test indicated the presence of metabolites above the amount established by the State of Minnesota indicating that he intentionally consumed alcohol in violation of his terms of probation.


The probation office filed a violation against the man and took him into custody. The man denied that he had been drinking alcohol arguing that the test was positive due to incidental exposure to alcohol. Four and a half months later a state court judge at his probation violation hearing determined that he should be released because there was credible evidence that the test was positive only due to incidental exposure to alcohol.


The man sued the drug and alcohol screening company in the United States District Court for the District of Minnesota under Minnesota state law for violations of the Minnesota Consumer Fraud Act (“CFA”), Minn.Stat. § 325F.69, subd. 1; violations of the Minnesota False Statement in Advertising Act (“FSAA”), Minn.Stat. § 325F.67; and common-law negligence.

California Abandons Rule That Settling With One Tortfeasor Releases All From Liability; Adopts Setoff-With-Contribution Approach to Medical Liability Apportionment

A newborn suffered from jaundice at birth. After he was discharged from the hospital, his condition worsened. His mother contacted his pediatrician’s office and was told his condition was normal. When the newborn became lethargic and nonresponsive, the mother contacted the pediatrician again and was told to take him to the emergency room. By the time his parents took him to the emergency room, the newborn’s bilirubin level had become toxic, a condition known as kernicterus, causing irreversible brain damage.


The child, through a guardian ad litem, sued the pediatrician, his corporation, and hospital.