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Congratulations to Partner Michael Badowski
on Defense Verdict in Med Mal/Prescription Drug Matter
This case involved the death of a thirty-year old female on August 23, 2002 from multiple
prescription drug overdosing. The essence of the Plaintiff’s claims was that our Defendant painmanagement physician negligently prescribed high doses of the pain medication Actiq (oraltransmucosal fentanyl) without due consideration for the interaction of the drug with the numerousother prescription medications being taken by the patient.
Plaintiff’s decedent was a long time sufferer of severe and debilitating migrane headaches and
diagnosed progressive fibromyalgia along with a host of mental health disorders. She had been seenand treated for these conditions by numerous health care providers of varying specialties for manyyears without any sustainable relief. At the outset of our client’s 2½ year involvement in the Patient’scare, conservative treatment measures at pain relief were attempted but proved unsuccessful and sheeventually required narcotic opioid pain medications to achieve some level of functional control overher pain. At times, the patient received Vicodin (hydrocodone), Duragesic Patch (timed releasetransdurmal fentanyl), and Oxycontin.
The immediate events leading up to the patient’s death began on 8/13/02, when she called our
Doctor’s office complaining of severe, unrelenting migraines. The evidence confirmed that the patienthad been frequenting all of the area hospitals’ emergency departments seeking pain injections and wasturned away as a “drug seeker”. Over the phone, the doctor authorized an emergency room visit andrenewed for her a prescription of Lortab (Vicodin) which had most recently been prescribed to herby her PCP. Three days later, 8/16/02, the patient presented without appointment to our client’soffice in extreme pain distress and represented that the ED’s refused to treat her and that she hadnowhere to turn. In an effort to break her migraine pain cycles and keep her out of the ED’s, thedoctor provided 800 mcg and 1200 mcg scripts of Actiq oral pain relief swabs to be taken only onceevery 4 to 6 hours prn. On the day that she had filled the 1200 mcg script of Actiq, the patient wasfound dead in her home where she had lived with her mother. There was no definitive evidence toindicate just how much drugs the patient had taken in the hours before her death.
Peripheral blood toxicology on autopsy returned the following results:
The cause of death was said to be “multiple drug toxicity” as most of the medications were
demonstrated to be well above recognized therapeutic ranges with Actiq appearing at the anecdotallow end of the lethal range.
At trial, plaintiff’s attorney focused in on the Actiq as the primary culprit. Plaintiff emphasized
that the PDR and package insert for the drug called for its use only in the treatment of break throughpain in cancer patients and only at closely titrated doses starting at 200 mcg. Plaintiff’s attorneyhighlighted the drug manufacturer’s “Black Box” warnings of the danger of respiratory depressionand arrest. In defense, we succeeded in persuasively educating the jury as regards to the “off label“ use of most medications by clinicians and that the limited FDA approved use of prescription drugspublished in the PDR simply does not represent the standard of care. Defense experts, Philadelphiatoxicologist, James Roberts, M.D. and Philadelphia pain management specialist, Daniel Gruener,M.D. provided exceptionally cogent testimony that the manner in which our client employed the use
of Actiq in this instance was appropriate and that the patient’s death was the result of her taking moreof her meds than what had been prescribed by her physicians. Case studies were revealed to the jurythat Actiq is safely employed “off label” to treat migraine headache sufferers and prevent thefrequency of costly and embarrassing ED visits and at self administered doses ranging between 400mcg to 1600 mcg prn. Plaintiff’s pain management expert, Gerald Aronoff, M.D. was cross examinedby reference to his own publications supporting the use of Actiq as an effective analgesic in non-cancer break through pain patients.
It was postulated to the jury that the patient’s death was due to her over medicating herself
either as an effort to relieve her unremitting pain or as a deliberate suicide. Following a week longtrial, a 12 member (all female) Dauphin County jury unanimously returned a verdict of no negligencein favor of our pain management physician client.
The case was prosecuted on behalf of the Plaintiffs by Philadelphia attorney, Leon Aussprung,
M.D., J.D. and defended on behalf of the doctor by Margolis Edelstein partner, Michael Badowski.
Michael M. Badowski NBTA Certified Civil Trial AdvocateDirect Dial 717-760-7500 FAX 717-975-8124Mobile 717-579-3387
The following is a list of commonly prescribed drugs covered under the EmblemHealth pharmacy program. To obtain the complete formulary, please visit www.emblemhealth.com . The list is not all inclusive and does not guarantee coverage. We encourage you to ask your doctor to prescribe generic drugs whenever appropriate. PLEASE NOTE: Drugs listed on this document may become non-Preferred if a g
THE PUZZLE OF CLASS ACTIONS WITH UNINJURED MEMBERSJoshua P. Davis,1 Eric L. Cramer,2 and Caitlin V. May3A puzzle has developed regarding class action doctrine. Courts in a number of importantrecent decisions have reaffirmed that classes may satisfy the predominance standard under Fed. R. Civ. P. 23(b)(3) and be certified even if they contain members who have not sufferedcognizable injury.4 Th