Medical Risk Law Weekly News

Week of: August 06, 2012


Venous Catheterization Set Recalled For Possibly Fatal Allergic Reaction

The Multi-Lumen Venous Catheterization Set with Blue FlexTip ARROW Catheter is being recalled because the device’s label erroneously states that the product "contains no medication." However, the device contains chlorhexidine and silver sulfadiazine. Additionally, the product’s label is missing the appropriate chlorhexidine contraindication.


Athena Cantaloupes Recalled Due to Possible Listeria Contamination

13888 cases of whole Athena variety cantaloupes (9 cantaloupes per case) and 581 bins (110 cantaloupes per bin) are being recalled due to the potential for being contaminated with Listeria monocytogenes. A total of 188,902 melons are affected by this recall. The FDA and the North Carolina Department of Agriculture are working with Burch Equipment LLC, North Carolina, following a random sample of Athena cantaloupe testing positive for listeria monocytogenes.

CDC Reports Swine Flu Transmitted At State Fair

The state of Indiana this week reported the first novel influenza virus outbreak associated with a fair this season. Following reports of ill swine and humans during a fair in Indiana from July 8-14, samples were taken from swine and humans. Twelve swine were randomly sampled by Indiana state animal health officials, tested at Indiana and federal animal diagnostic laboratories, and found to be infected with swine influenza A (H3N2) viruses. Four people tested positive for influenza A (H3N2) variant virus. Genetic testing confirmed that the viruses found in humans and those found in swine are nearly identical, and both have the M gene from the pandemic H1N1 virus. These cases bring the total number of detected infections with the H3N2v virus containing the pandemic M gene in the United States since 2011 to 17.

Recall, Affecting Many Vendors, of Pre-Cut Onions Due to Possible Listeria Contamination

Diced, slivered, and whole peeled red and yellow onions, and diced onion and celery mix packaged under the brand "Gill's Onions" are the subject of a voluntary recall as they may be contaminated with Listeria monocytogenes.


Neuropsychologist's Expert Testimony Regarding Plaintiff’s Malingering Properly Admitted

The gripper arm of the defendants’ garbage truck struck the plaintiff. The plaintiff sued the defendants for negligently operating the truck. He claimed that the blow by the gripper arm caused injury to his head, neck, shoulder, and back. After a trial, the jury was charged on comparative negligence and returned a verdict finding plaintiff seventy percent liable and defendants thirty percent liable, which barred any monetary recovery for the plaintiff.


The plaintiff appealed arguing that the trial court erred in denying his Daubert motion to limit the testimony of his own expert neuropsychologist. Specifically, he tried to suppress the part of his neuropsychologist's expected testimony that would suggest the plaintiff did not put forth his maximum effort during his diagnostic testing, indicating that the plaintiff was malingering in order to affect the outcome of the tests.

On-Call Doctor’s Phone Conversation Does Not Establish Physician-Patient Relationship

A woman presented at an emergency room complaining of back pain. A resident in the emergency room called the defendant neurologist on-call. The defendant neurologist understood this conversation to be a request for advice, not a request to see the patient or otherwise become involved in the patient’s care. The defendant advised the resident to admit the patient to the hospital for pain management. The patient was admitted to the hospital by her primary care doctor. The primary care doctor consulted a different neurologist, who had previously treated the patient.


Five days after the patient was admitted to the hospital the patient had still not been diagnosed, so the primary care doctor called the defendant neurologist. The defendant neurologist examined the patient that day, diagnosed her with cauda equina syndrome, and immediately operated to remove pressure on her nerves. The surgery was successful, but the delay between the onset of the pressure and its removal resulted in substantial damage to the nerves controlling her legs and her bladder and bowel functions.


The woman sued the hospital, the defendant neurologist, and the neurologist with whom her primary care doctor consulted initially. Her claims against the hospital and the neurologist with whom her primary care doctor consulted initially were settled. The only remaining claim was against the defendant neurologist.

Expert Medical Testimony As To Causation Must Be In Terms Of Medical Probability, Not Possibility

A two-year-old boy suffered from Chediak–Higashi Syndrome (CHS), a rare genetic disease characterized by neurological and bleeding disorders affecting the organs and compromising the immune system. Because of this, the child experienced seizures for which he was prescribed topiramate (brand name Topomax), an anticonvulsant medication, specifically two 25–milligram pills, three times a day (a total of 150 milligrams per day).


At a regularly scheduled doctor’s appointment, it was discovered that the child had a high fever, so he was admitted to the defendant medical center. While in the medical center, a nurse administered 200–milligram dose of topiramate. Subsequently his mother noticed the boy became lethargic and had trouble breathing. The boy was transferred to the pediatric ICU. He died approximately four hours after the nurse administered the topiramate. The autopsy report listed the cause of death as “acute splenic sequestration crisis secondary to the accelerated phase of Chediak–Higashi Syndrome.” The mother sued the medical center for medical malpractice and wrongful death.