Medical Risk Law Weekly News

Week of: September 09, 2012


Late Stage Prostate Cancer Drug Approved by FDA

The FDA approved Xtandi (enzalutamide) to treat men with late-stage (metastatic) castration-resistant prostate cancer that has spread or recurred, even with medical or surgical therapy to minimize testosterone. It has been approved for prostate cancer patients previously treated with docetaxel, another anti-cancer treatment.


Reumofan Plus Recalled Due to Unstated Drug Ingredient

Five hundred lots of Reumofan Plus Tablets are being recalled due to findings of active ingredients that were not stated in the prescription drug labeling that should be used only under the supervision of a health care professional. The hidden drug ingredients in Reumofan Plus and Reumofan Plus Premium may interact with other medications and result in serious adverse events.

Children with Neurologic Disorders at High Risk of Death From Flu

A disproportionately high number of children with neurologic disorders died from influenza-related complications during the 2009 H1N1 pandemic, according to a study by scientists with the Centers for Disease Control and Prevention. Since the H1N1 pandemic, children with neurologic conditions continue to represent a disproportionate number of influenza-associated pediatric deaths. The report in the Journal Pediatrics underscores the importance of influenza vaccination to protect children with neurologic disorders. CDC is joining with the American Academy of Pediatrics, Families Fighting Flu and Family Voices to spread the message about the importance of influenza vaccination and treatment in these children.

Recall, Affecting Many Vendors, of Mangoes Due to Possible Salmonella Contamination

Daniella brand mangoes are being recalled because they may be contaminated with Salmonella Braenderup. The recalled mangoes, a product of Mexico distributed by Splendid Products, were sold as individual fruit and can be identified by the Daniella brand sticker and one of the following PLU numbers: 3114, 4051, 4311, 4584 or 4959. The recalled mangoes were sold at various retail stores throughout the U.S. between July 12 and August 29, 2012.


Nursing Home Had Honest Belief that Nurse Violated Work Rule So There Was No Retaliation for Nurse’s Firing After Participation in Investigation of Home Patient Abuse

A registered nurse was employed by a nursing home. During her shift a resident died. The local police assessed the resident’s death. In relation to this event, the nursing home disciplined the nurse for failing to instruct another employee to conduct CPR on the resident and failing to notify the resident's physician.


The Ohio Department of Health investigated the resident’s death. In the course of its investigation, the nurse discussed the incident with a representative of the Ohio Department of Health. During this investigation, a question arose as to whether the expiration date on the nurse's CPR certification card had been altered. Consequently, the nursing home disciplined the nurse for violating a rule in the employee handbook and suspended her. The nurse challenged this discipline and succeeded in having her suspension revoked with back pay and the disciplinary report sealed.


Later, on a separate occasion, the nursing home disciplined the nurse for failing to follow a direct order from a supervisor in relation to shepherding a new resident through orientation.


Finally, the nursing home disciplined the nurse for improperly documenting information in a patient's medical record and a violating a safety rule. Specifically, the nursing home claimed the nurse had falsely indicated in a patient's treatment record that she had changed the patient's dressing, left a syringe by a patient's bedside during her shift, and left the medical cart unlocked. Consequently, the nursing home terminated the nurse’s employment.


The nurse sued the nursing home for retaliation under Title VII of the Civil Rights Act of 1964 and Ohio Revised Code § 3721.24(A), which prohibits retaliation for participating in a Department of Health investigation.

Fairly-Debatable Defense to Denial of Dental Claim Should Not Be Resolved on Summary Judgment in Action for Breach by Insurer of Covenant of Good Faith and Fair Dealing

An insurer provided underinsured motorist coverage to a man with a policy limit of $30,000. The man was in a car accident. The accident was not his fault. The man suffered a number of physical injuries. He accepted the at-fault driver’s liability insurance policy limit of $25,000. He then filed an underinsured motorist claim with his insurance company.


The only disputed claim under the underinsured motorist policy involved the man’s teeth. Four years after the accident, the man visited a dentist. The dentist discovered extensive dental problems that he speculated were caused by the car accident and were simply neglected due to more pressing medical issues. He estimated the cost of repairing the man’s teeth to be $14,000.


The insurance company offered the man $5,000 for his underinsured motorist claim, which the man rejected. He argued he was entitled to $30,000. The case went to arbitration where arbitrators determined that the total award that the insurer owed the man was $18,500, which the insurer paid.


The man sued his insurance company for breach of contract, bad faith breach of contract, and intentional infliction of emotional distress.

Voluntary Nonsuit Without Prejudice of a Medical Malpractice Action Is Not a “Favorable Termination on the Merits” as Required To Bring a Malicious Prosecution Claim

A patient underwent a medical procedure to implant a port-a-cath. The doctor performing that procedure told her that he discovered a guide wire in her vein, which he speculated had been left during a prior port-a-cath implantation. She sued the doctors who performed the prior port-a-cath implantation and the hospital where it was performed for medical malpractice. She was then informed that another party was responsible for the presence of the guide wire. She voluntarily dismissed the medical malpractice suit pursuant to Tennessee Rule of Civil Procedure 41. The doctors named in the original suit sued the patient for malicious prosecution and abuse of process.


The patient filed a motion for summary judgment arguing that the doctors could not prove that the prior suit had been terminated in their favor. The trial court denied her motion for summary judgment finding that issues of material fact existed with respect to the malicious prosecution claim. The Court of Appeals affirmed the trial court's denial.