American Medical News
By — Posted July 15, 2013
Attorneys said a recent federal court ruling could fuel more lawsuits against physicians by medical device manufacturers that want to mitigate the companies’ liability for injuries associated with their products.
The U.S. District Court of Oregon, Eugene Division in late May ruled that I-Flow LLC, which is the subject of a wrongful death lawsuit over the use of its pain pump, may file a third-party claim against an orthopedic surgeon for negligence and comparative fault. The court said the physician’s potential liability for performing surgery negligently extends to anyone foreseeably injured by that negligence, which in this case includes I-Flow.
The case is not the first in which I-Flow has attempted to blame physicians for mishaps involving its pain pumps, said Ronald E. Johnson Jr. He is a Kentucky attorney who has represented more than a dozen patients who have sued I-Flow after using its pain pumps on patients.
There is “an increasing tactic by I-Flow to blame the doctors and keep the doctor in at trial so that the jury can put part of the blame on the doctor,” he said. “The plaintiff is not blaming the doctor. The allegation is that I-Flow knew the pump was not approved [by the Food and Drug Administration for certain uses], yet they were representing it to the doctor to use it in that way. I have yet to see a case where the doctor knew it was not FDA-approved” for the uses advocated by I-Flow.
I-Flow declined to comment on the pending litigation. “We stand firmly by the safety and efficacy of ON-Q PainBuster, which relieves pain significantly better than narcotics following surgery,” the company said in a statement.
In the Oregon case, Brooke Benz, MD, an orthopedic surgeon, performed surgery on John Philip Verd III’s shoulder in 2003, during which the physician implanted a pain pump. After Verd developed chondrolysis, Dr. Benz performed a second surgery on the patient in 2004. In 2009, Verd died following an overdose of the pain medication used to treat his chondrolysis, according to court documents.
The patient’s family sued I-Flow, claiming the company’s defective design and negligence caused Verd’s chondrolysis and, by extension, his wrongful death. I-Flow failed to warn Verd and his physician about the dangers of using the pump in the manner in which it was used, the family said. In January, I-Flow filed a third-party claim against Dr. Benz for medical negligence and comparative fault. Under recent Oregon case law, a tortfeasor is not liable for more than its percentage of fault, and percentages of such fault should be determined in the original negligence action brought by plaintiffs.
Dr. Benz requested the court to dismiss the third-party claim. I-Flow’s claims are independent of the plaintiffs’ underlying action, and the allegations should fail as a matter of law because there was no doctor-patient relationship between I-Flow and Dr. Benz, the doctor argued. However, the district court said Oregon law authorizes a nonpatient third party to assert claims against a physician based on that doctor’s negligent care of a patient.
“Further, while not dispositive, this result is especially appropriate here because I-Flow’s derivative claim for medical negligence and comparative fault is premised on the doctor-patient relationship between Verd and [Dr.] Benz,” the opinion said. As case law makes clear, “if I-Flow prevails on this claim, [Dr.] Benz will be liable to Verd, to whom [Dr.] Benz undisputedly owed a duty of care.”
An attorney for Dr. Benz could not be reached for comment by this article’s deadline. In court documents filed July 5, the physician denied all wrongdoing.
A Kentucky court threw out a similar suit by I-Flow against an orthopedic surgeon in 2012. In that case, Lucas Frietsch’s family sued the device firm after he was allegedly injured by its pain pump, and I-Flow filed a third-party claim against Bruce Holladay, MD.
A judge dismissed Dr. Holladay from the suit. I-Flow fought the dismissal but ended its protest after the company settled with Frietsch in August 2012, said Johnson, who represented Frietsch. Dr. Holladay did not contribute to the settlement, according to his attorney, Mary K. Molloy. She believes I-Flow is issuing such third-party claims against doctors in an attempt to pass on settlement costs, she said.
“From the doctor’s perspective, given how the manufacturer’s marketed these pain pumps for use in the joint, despite their claims that they did not do so, I believe [I-Flow] thought that since the injuries were so significant, the doctors would contribute to settlements because of concern that a jury would blame both the physician and the manufacturer,” Molloy said in an email.
Similar attempts to join physicians in suits were made by device makers after widespread claims of defective breast implants, said David A. Oliver, a Texas-based civil defense attorney. Whether courts uphold third-party claims depends on the state, he said. In some states, “you can turn around and seek contribution or common law indemnity if you lose to the plaintiff,” he said. “Elsewhere, as in Oregon, it’s a ‘use it or lose it’ proposition manifesting at the time of the plaintiff’s claim. I’d say Oregon’s scheme wouldn’t just encourage such claims, it would almost mandate them.”
The I-Flow lawsuits are a reminder to physicians to think twice about information provided by pharmaceutical and medical device companies, said Adriane Fugh-Berman, MD, a professor in the Dept. of Family Medicine at Georgetown University School of Medicine in Washington. She also is director of PharmedOut, a project at the university that works to educate doctors about pharmaceutical companies’ influence.
“The key message is when you rely on a company for accurate information for their device, that you could end up in a courtroom,” she said. Seek out objective data elsewhere, because “you’re not ever going to get objective information from a company rep.”