The decedent sought treatment from the defendant psychiatrist beginning in June 1992 after a drug overdose incident in his home and was diagnosed with depression. While under the treatment of the defendant psychiatrist, the decedent revealed that he had been using intravenous narcotics sporadically for a six month period and that he had obtained the drugs in connection with his employment as an anesthesiologist at the defendant hospital. The decedent reportedly told the defendant psychiatrist that he had stop using the illegal drugs.
The plaintiff alleged that the decedent was treated for depression, but that the defendant psychiatrist failed to pursue the decedent's admitted drug use. After being treated by the defendant psychiatrist on four occasions, the decedent was found dead at the defendant hospital where he had staff privileges as an anesthesiologist. The cause of death was determined to be an overdose of intravenous Demerol (an anesthetic) and prozac which had been prescribed by the defendant psychiatrist for treatment of depression.
The plaintiff's experts contended that the defendant hospital failed to adequately control its narcotic sign-out procedures, allowing the decedent to divert a quantity of Demerol which led to his lethal overdose of the drug. The decedent would routinely check out a quantity of medications from the hospital pharmacy for use in connection with his duties as an anesthesiologist. The plaintiff argued that these medications may or may not be used during the day's procedures and that the defendant hospital violated its own policies in failing to account for any unused medications at the end of each day.
The plaintiff's expert psychiatrists testified that the defendant psychiatrist failed to adequately treat the decedent's drug abuse problem and that the extent of the drug abuse should have been investigated and properly treated. The plaintiffs experts contended that the defendant psychiatrist should have recognized that the decedent may not have been telling the whole truth regarding his use of drugs and that once he admitted diverting drugs from the hospital for his own use, the defendant psychiatrist had a duty to find out more about the decedent's history and determine if an addiction existed and whether the decedent was in need of treatment.
The decedent was survived by his wife and two children, ages six and eight at the time of his death. The plaintiff's economist estimated the plaintiff's total economic damages as between $ 5.4 and $ 5.5 million.
The defendant psychiatrist testified that he repeatedly asked the decedent if he were actively using illegal drugs and the decedent said that he was not. The defendant's expert psychiatrist opined that the defendant met the required standard of care under the circumstances. The defendant hospital argued that the decedent had taken the Demerol in violation of the law as well as hospital policy and that the hospital was not responsible for his dishonesty in obtaining the drug. The defense also disputed the plaintiff's economic claim, contending that the decedent's drug abuse would likely have jeopardized his earning ability as a physician.
The jury found the defendant hospital 48% negligent, the defendant psychiatrist 32% negligent and the decedent 20% comparatively negligent. The plaintiff was awarded $ 5.6 million. Post-trial motions are pending.
The jury hearing this medical malpractice action apparently had a strong reaction to the circumstances surrounding the death of the decedent, who obtained a lethal drug dose from the defendant hospital's pharmacy. The case was made even more compelling by evidence that the young doctor had sought help from the defendant psychiatrist and had admitted improperly using narcotic drugs over a period of some six months before his death. Some comparative negligence was expected. However, the jury placed the bulk of responsibility for the drug related death upon the defendant hospital. The plaintiff stressed that the hospital had put a very strict policy of drug accountability into place to prevent diversion of drugs from its pharmacy, but had failed to execute the policy. The plaintiff also argued that the hospital was aware that it was a recognized risk that members of the medical staff could divert narcotics, sometimes for their own use. Evidence showed that another anesthesiologist at the defendant hospital was found to be addicted to anesthetic agents prior to the decedent's death. This served to establish the hospital's awareness of an ongoing problem. The other anesthesiologist involved had gone through a drug rehabilitation program and was able to resume his duties at the hospital.
This case demonstrates the potential liability to a hospital, medical center or even a physician's office for the failure to have in effect a strict policy of drug accountability and enforcement of that policy so as to prevent the unauthorized or illegal diversion of drugs from the facility. Not only should a policy of accountability be in effect, but an individual should be designated to check on the effectiveness of the policy and also as to whether or not that policy is being enforced and carried out.
From a liability stand point at least, it is not sufficient that a policy of accountability be reduced to written documentation, it is also essential that there be clear enforcement of that policy and the designation of an individual or individuals whose function it is to oversee and be sure that the policy is being effectively carried out.
This case also demonstrates that individuals who become addicted, whether it be physician, nurse, other employees or any individual, by virtue of the lack of an effective drug accountability policy or its lack of enforcement in a medical facility are not necessarily precluded from institution of suit and assessment of liability against the institution simply because the individual contributed to his or her own injury by virtue of the voluntary addiction. Voluntary addiction may, in most jurisdictions, reduce the verdict by contributory negligence, but will not necessarily obviate a cause of action against the offending facility and preclude a successful recovery. Furthermore, Courts in most jurisdictions recognize that an addicted individual who has accessibility to drugs as a result of the negligence of an institution or other medical facility may not be able to help themselves and control their actions in wrongfully removing drugs from the facility due to the addiction.
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