Central New York Injury Lawyer Blog

Articles Posted in Prescription Errors

pills.jpgThe New York Times just reported on a problem I blogged about many months ago: Brand-name drug producers can be sued for failing to provide adequate warnings of prescription drug dangers while the producers of the generic form of the drug cannot. Why? Because the Supreme Court says so. I refer you to the Times article as well as to my previous blog post.

The Times article demonstrates the stark unfairness of this state of the law with a “tale of two cities”. In the first case, a woman had to have her hand amputated after an emergency room nurse injected her with an anti-nausea drug, causing gangrene. The drug happened to be a generic drug. She sued for the manufacturer for failure to warn about the risks of injecting it, and her case was dismissed. Another woman with the same injury who was injected with the same drug, but of the brand-name variety, sued on the same facts, and won big ($6.8 million). A $6.8 million dollar difference due solely to the “luck of the draw” in that the hospital in the first case used a generic drug and in the second case used a brand name.

Justice? Go figure.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.

Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.


Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for courtroom.jpgAs every New York prescription drug lawyer knows, prescription drug suppliers don’t always do a stellar job warning their customers about risks associated with their products. In fact, sometimes they do a plainly lousy job. And that can cause serious injury, or even death, to prescription drug users.

But every wrong has a legal remedy, right? Who could disagree with that?

The Supreme Court of the United States, that’s who. Last Thursday the U.S. Supreme Court, by a 5 to 4 vote, in a case called Pliva v Mensing, , ruled that the makers of generic drugs (as opposed to brand-name drugs) may not be sued for faulty or inadequate warning labels. This is surprising, to say the least, since two years ago the same Court, in Wyeth v Levine, reached an opposite conclusion regarding the makers of brand-name drugs.

The reason for the disparity in treatment? The majority in the Pliva case says that brand-name drug companies can change the labels on their products without seeking permission from the FDA, while generic drug makers cannot. True enough (one of the idiosyncrasies of Federal drug law), but this recent court ruling does not allow consumers to sue generic drug makers even where they can show they failed to make diligent efforts to solicit permission from the FDA to change their labeling when they saw a problem emerging. Instead, they can sit back and relax — while you lie down and die.

Even the Court seems to recognize the absurdity of having one rule for brand-name drugs and another for generic drugs. Justice Clarence Thomas, who wrote the majority opinion in PLIVA, admitted the distinction between generic and brand-name drugs “makes little sense.”

I agree. New York prescription drug lawyers agree. And if you or someone you love gets sick or dies because of faulty warnings on generic prescription drugs, you will agree, too.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
Central NY Personal Injury Lawyer Michaels & Smolak, P.C.


nursing home woman.jpgThe Auburn Citizen recently reported on a Cayuga County Nursing Home Negligence case, and that’s my topic for today.

At first blush, it seems like a compelling case. The nursing home’s negligence is clear cut. So clear cut that when the State Department of Health cited the Home with violations, the Home almost immediately paid the $12,000 fine without protest. And the resulting injury was severe; death! And the nursing home has been sued. But even though the negligence is clear, and the injury severe, I may have declined to take this Auburn New York nursing home negligence wrongful death case. Why?

Glad you asked. First, a few facts. The nursing home nurses gave this 94-year-old resident (I’ll call her “the victim”) the wrong medication. The mix-up happened because two drugs’ names – metolazone and methimazole – have many letters in common. But in fact they were nothing alike; one would help treat this woman’s ailments and the other would kill her. (New York prescriptions errors like this one are, unfortunately, all too common). The mistake started when a pharmacy (which has also been sued) entered the order incorrectly, but the nurses failed to detect the mistake and gave the victim this wrong drug repeatedly.

During 18 days, the victim developed symptoms that should have tipped off the nurses that something was amiss; she developed an inflamed large intestine and became wane and dehydrated and then suffered an “unresponsive episode”. The victim eventually died of heart problems from kidney failure aggravated by the medication.

Sounds like a great case, right? So why might this Central New York wrongful death lawyer have rejected the case?

The problem is not the facts of the case, which are compelling, but rather New York wrongful death law. Unlike the law in almost all other States, New York wrongful death law does not allow for compensation for the grief of family members. The law allows only for “economic” loss, which means funeral expenses and any loss of economic support to close family members (spouse and children). But when you are 94 and in a nursing home, you aren’t supporting anyone, and therefore you have no compensable loss under New York wrongful death law, except perhaps for some funeral expenses.

The only way this case makes economic sense to bring is if the victim endured, before she died, “conscious pain and suffering” as a result of the prescription error. If she did, her estate can claim compensation for it. From the newspaper article I have read, it seems there might be a problem proving that the patient endured any conscious pain and suffering. But I could be wrong. I would need to review the medical records and talk to the family members and other witnesses to find out.

My point is that New York wrongful death law often results in a travesty of justice for elderly victims of medical malpractice and their families. Negligent and careless doctors and nurses can almost literally “get away with murder” as long as the patient experiences no conscious pain and suffering. Fair-minded people have been lobbying Albany for years to change the law, but the insurance and doctor lobby has pushed back all assaults on this horrendous law. Maybe one day justice will prevail . . . .. Let’s hope so.

related posts:

Central New York Prescription Malpractice Lawyer Explains How Medication Errors Happen

>Syracuse Medical Malpractice Lawyer Explains: Medical Malpractice Is Killing Us.

Federal Law Regarding Compensating Wrongful Death at Sea Is, Like New York’s Wrongful Death Law, Unfair and Harsh

Syracuse Malpractice Lawyer: Nursing Home Neglect and Maplractice Is Pandemic, As Demonstrated by Recent Fines Issued to Syracuse Nursing Homes.Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyer Michaels & Smolak, P.C.


prescription.jpgWhen Floridian Beth Hippely was diagnosed with breast cancer, and needed a blood thinner to fight it, she walked into Walgreens with her prescription. A teenage, unlicensed pharmacy technician, who Walgreens had recently hired, happened to be filling prescriptions that day. She accidently gave Hippely a dosage 10 times stronger than what she had been prescribed.

The mistaken drug overdose killed Hippley, but she did not “go gently into that good night”. The medication error caused her first to suffer a cerebral hemorrhage (a “brain bleed”), which in turn caused her to become imprisoned in her own body in a condition known as “locked-in” state. She lived as a head-on-a-pillow, conscious but unable to communicate with the outside world except by using eye movements (one blink for “yes”, two for “no”). Because of her weakened condition, she was unable to undergo chemotherapy to fight her cancer, and died of it, after a long, painful struggle.

Hippley’s family (husband and three children) won a $33.3 million verdict in their prescription error wrongful death lawsuit. Walgreens appealed the jury verdict, but last month a Florida court of appeals upheld it.

Why was the Beth Hippely verdict so high? In part, I believe, it is because Walgreen’s “blame the victim” defense backfired. Instead of sucking it up and taking responsibility for its error, Walgreens’ trial strategy was to blame Beth Hippley’s physicians, and even the victim herself, for the overdose! They claimed SHE should have caught the mistake. She should have checked the prescription against the dosage she was given. In other words, she should not have trusted Walgreens, the self-proclaimed “Pharmacy America Trusts”, to do its job right!

I have blogged about this “blame the victim” defense before, and while it can sometimes work, it just as often backfires. Let’s face it; anyone can make a mistake. But the jury obviously got angry at Walgreen for failing to shoulder its responsibility, and especially for blaming boor Beth Hippely, who, by the time of trial, had succumbed to her long, unbelievably painful struggle, and had left a grieving husband and two small children behind.

Most medication errors can be avoided by simple, solid, procedures and rules for double-checking the prescriptions against the medication and dosage being given to the patient. When such procedures are put into place, and enforced, medication errors are drastically reduced. When a pharmacist or technician makes a prescription mistake, whether by giving the wrong dosage or the wrong medication, the drug store is liable not only because its employee made a mistake, but also because the pharmacy itself failed to implement proper procedures and rules for double-checking the dosage and medication.

Suing pharmacies for medication errors is the right thing to do; these lawsuits provide economic incentive for drug stores to put in place, and enforce, safe drug dispensing practices.