Drug & Device News

Jury Rejects 'Zoloft Defense,' But Misconduct Alleged

The California judge who oversaw the kidnapping and rape trial of Anthony Orban has called for an inquiry to determine if there was jury misconduct. Orban claimed he committed his crimes while under the influence of Zoloft, which he said made him black out, rendering him not responsible for his actions. Jurors in the case were asked during voir dire whether they had ever taken the antidepressant Zoloft, or whether they had any strong opinions about such drugs. One juror who indicated that she had not taken Zoloft allegedly later told a fellow juror that she had, and that it had not affected her mental competence. The discrepancy came to light when a juror contacted the convicted man's defense firm to report the overheard conversation. If the inquiry ends with a finding of misconduct, a new trial may be ordered.

Law School Will Study Legal Consequences of Personalized Medicine

The Arizona State University Sandra Day O'Connor College of Law has been given a grant of $864,780 to research legal liability and the emerging science of “personalized medicine.” Personalized medicine will be used to tailor the medical treatments prescribed for particular patients in order to optimize outcomes. Gary Marchant, Director of the law school's Center for Law, Science & Innovation and the leader of the research venture, said, “Our goal in this project is first to understand the dynamics and likely trajectory of liability in the field of personalized medicine. We then will try to shape liability impacts to be a positive rather than detrimental influence on the deployment of personalized medicine technologies and knowledge.” Positive impacts of the possibility of legal liability in the personalized medicine field, he explained, could include the incentive for doctors to personalize medicine where appropriate; negative impacts could include their ordering unnecessary genetic tests, in order to protect themselves. The grant, which comes from the National Institutes of Health's National Human Genome Research Institute, will be distributed over the three-year period of the study.

Suit Based on Mishandling of Device Untimely

A New York trial court has determined that a man who suffered a stroke allegedly caused by a piece of broken catheter left in his body years earlier cannot sustain a medical malpractice suit against his healthcare providers because, under New York precedent, the catheter fragment cannot be considered a “foreign object” subject to the one-year discovery rule. Walton v. Strong Memorial Hospital, 2012 NY Slip Op 2231.

The plaintiff underwent surgery when he was three years old. At that time, a catheter was placed in him, then removed a week later. A piece of the catheter broke off and remained in his body, unbeknownst to all concerned. In his early 20s the plaintiff suffered a stroke, allegedly due to the broken piece of catheter. He brought suit for negligence against his childhood medical care providers within one year of discovering the catheter fragment had been left in his body years earlier. The defense sought dismissal, asserting the case was untimely filed.

In Flanagan v. Mt. Eden General Hospital, 24 NY2d 427 (1969), New York's highest court, the Court of Appeals, established a statute of limitations on claims involving foreign objects: a one-year clock would not start ticking until the patient could reasonably have discovered the object. Concerned that Flanagan would extend the limitations period for injuries caused by all manner of pharmaceutical products and medical devices used by patients statewide, New York's Legislature's reacted to the decision by enacting Civil Practice Law & Rules (CPLR) 214-a. It excludes from the definition of “foreign object” any “chemical compound, fixation device or prosthetic aid or device.” The Court of Appeals later decided LaBarbera v. New York Eye and Ear Infirmary, 91 NY2d 207 (2008), which further defined a “foreign object” as something that was never intended to be left inside a patient. Applying this precedent, Supreme Court Justice John Curran of Erie County, NY, reluctantly held that the Walton case must be dismissed, as the catheter that broke was intentionally placed in the plaintiff's body, even though the fragment was not meant to be left there.

Jury Rejects 'Zoloft Defense,' But Misconduct Alleged

The California judge who oversaw the kidnapping and rape trial of Anthony Orban has called for an inquiry to determine if there was jury misconduct. Orban claimed he committed his crimes while under the influence of Zoloft, which he said made him black out, rendering him not responsible for his actions. Jurors in the case were asked during voir dire whether they had ever taken the antidepressant Zoloft, or whether they had any strong opinions about such drugs. One juror who indicated that she had not taken Zoloft allegedly later told a fellow juror that she had, and that it had not affected her mental competence. The discrepancy came to light when a juror contacted the convicted man's defense firm to report the overheard conversation. If the inquiry ends with a finding of misconduct, a new trial may be ordered.

Law School Will Study Legal Consequences of Personalized Medicine

The Arizona State University Sandra Day O'Connor College of Law has been given a grant of $864,780 to research legal liability and the emerging science of “personalized medicine.” Personalized medicine will be used to tailor the medical treatments prescribed for particular patients in order to optimize outcomes. Gary Marchant, Director of the law school's Center for Law, Science & Innovation and the leader of the research venture, said, “Our goal in this project is first to understand the dynamics and likely trajectory of liability in the field of personalized medicine. We then will try to shape liability impacts to be a positive rather than detrimental influence on the deployment of personalized medicine technologies and knowledge.” Positive impacts of the possibility of legal liability in the personalized medicine field, he explained, could include the incentive for doctors to personalize medicine where appropriate; negative impacts could include their ordering unnecessary genetic tests, in order to protect themselves. The grant, which comes from the National Institutes of Health's National Human Genome Research Institute, will be distributed over the three-year period of the study.

Suit Based on Mishandling of Device Untimely

A New York trial court has determined that a man who suffered a stroke allegedly caused by a piece of broken catheter left in his body years earlier cannot sustain a medical malpractice suit against his healthcare providers because, under New York precedent, the catheter fragment cannot be considered a “foreign object” subject to the one-year discovery rule. Walton v. Strong Memorial Hospital , 2012 NY Slip Op 2231.

The plaintiff underwent surgery when he was three years old. At that time, a catheter was placed in him, then removed a week later. A piece of the catheter broke off and remained in his body, unbeknownst to all concerned. In his early 20s the plaintiff suffered a stroke, allegedly due to the broken piece of catheter. He brought suit for negligence against his childhood medical care providers within one year of discovering the catheter fragment had been left in his body years earlier. The defense sought dismissal, asserting the case was untimely filed.

In Flanagan v. Mt. Eden General Hospital , 24 NY2d 427 (1969), New York's highest court, the Court of Appeals, established a statute of limitations on claims involving foreign objects: a one-year clock would not start ticking until the patient could reasonably have discovered the object. Concerned that Flanagan would extend the limitations period for injuries caused by all manner of pharmaceutical products and medical devices used by patients statewide, New York's Legislature's reacted to the decision by enacting Civil Practice Law & Rules (CPLR) 214-a. It excludes from the definition of “foreign object” any “chemical compound, fixation device or prosthetic aid or device.” The Court of Appeals later decided LaBarbera v. New York Eye and Ear Infirmary , 91 NY2d 207 (2008), which further defined a “foreign object” as something that was never intended to be left inside a patient. Applying this precedent, Supreme Court Justice John Curran of Erie County, NY, reluctantly held that the Walton case must be dismissed, as the catheter that broke was intentionally placed in the plaintiff's body, even though the fragment was not meant to be left there.