Facts

Barbara Edinson, 58, a production manager with Disney, developed an upper respiratory infection in November 2007. She initially consulted an ENT physician, who diagnosed bronchitis and prescribed antibiotics. The antibiotics were unavailing and a week later she was referred to a pulmonary specialist who diagnosed her with severe bronchitis and acute asthma. She was given different antibiotics, and advised to return to be re-evaluated. She returned to her ENT specialist, who again noted that her problems were worsening and prescribed additional antibiotics.

Edinson thereafter presented to defendant, Dr. Susan Pekarovics, M.D., complaining of worsening symptoms. Dr. Pekarovics made a clinical diagnosis of pneumonia and acute sinusitis. She wrote a prescription for 800 mg of IV Gentamicin, a well known ototoxic and nephrotoxic antibiotic, to be administered by co-defendant, IV Solutions Clinical Pharmacy, a home infusion IV pharmacy for eight days.

Dr. Pekarovics maintained that she wrote (on a separate script) a clarification of that order indicating that the 800 mg was to be a loading dose and the pharmacy was to thereafter obtain "peak and through" levels of the medication, monitor the patient's renal function (BUN and creatinine) and adjust the dose of the antibiotic to maintain it in a safe and therapeutic range. The pharmacy never received the clarification order and thus, based upon industry practice, assumed that the physician was monitoring the medication and would make the necessary dose adjustments.

The Gentamicin was neither monitored nor was the dose adjusted, resulting in the patient receiving the drug "as written" on the order, which was an admittedly excessive amount of the drug.

Shortly after the conclusion of the antibiotic therapy, the patient developed severe vestibular symptoms (unremitting vertigo and oscillopsia), which are known effects of Gentamicin toxicity. Following hospitalization, the patient's vestibular and ocular symptoms did not abate, and she was referred to a specialist at UCLA who diagnosed her with permanent damage secondary to Gentamicin toxicity. She was unable to return to work, and subsequently determined to be permanently disabled.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that Dr. Pekarovics was negligent in prescribing Gentamicin for an erroneous diagnosis that she did not properly work up; miscalculating the appropriate dosage of the drug, especially failing to consider the patient's ideal versus actual body weight and underlying chronic renal compromise; and failing to monitor the drug or ensure clear orders were given for the drug to be monitored and the dose adjusted to prevent toxicity and its sequellae.

As to IV Solutions Clinical Pharmacy, plaintiff claimed that the pharmacy was negligent in failing to identify the order for Gentamicin as calling for a massive overdose as written. Plaintiff also claimed that the pharmacy was negligent for not calling the physician to discuss the order.

Plaintiff maintained that as a result of the negligence of each defendant, she suffered from Gentamicin poisoning, resulting in permanent and disabling injuries.

DEFENDANT'S CONTENTIONS:
Dr. Pekarovics acknowledged that the patient received more Gentamicin than she had intended be administered. However, she contended that her diagnosis and management of the patient was appropriate, she recognized the ambiguity in the written order, and she authored the clarification order instructing the pharmacy to monitor and adjust the dose of the medication, which she asserted was faxed to the pharmacy at the same time as the original order. She also argued that the clarification order faxed to the pharmacy went through, such that she believed the pharmacy would monitor the patient and the pharmacy thought she would be doing it.

Dr. Pekarovics further maintained that, although the patient did receive an overdose of the medication, the problems which the patient had were secondary to longstanding ENT problems, combined with acute barotraumas secondary to flying at altitude during the time she was still recovering from her pneumonia, sinusitis, and bronchitis, and was in fact unrelated to the Gentamicin.

IV Solutions Clinical Pharmacy contended that it never received the clarification order. It contended that the standard in the community was that absent an order for it to monitor and dose the medication, which it could bill and be compensated for independent of administering the IV medication, the ordering physician was responsible for the monitoring.

It also acknowledged, however, that the order it received, while administered as written, was excessive and should have prompted a call by its pharmacist to the physician to discuss the order. It thus presented no standard of care defense; rather, asserted that the physician was responsible, at least in part, for the patient mistakenly receiving an overdose of medication.

The pharmacy further claimed that the medical evidence demonstrated that the patient's problems were not the result of Gentamicin toxicity, rather, the result of a pre-existing ENT problem compounded by having flown to San Francisco while still recovering from her illness.

Settlement Discussions

Plaintiffs demanded a $1 million global settlement. Plaintiffs' last demand to IV Solutions was $500,000. Dr. Pekarovics made no offer, no consent. IV Solutions made no offer, no consent.

Damages

Plaintiffs sought $1.5 million in both economic and non-economic damages. Plaintiff's husband claimed loss of consortium.

Injuries

Plaintiff suffered permanent vestibular (balance) and oscillopsia (vision) problems, resulting in permanent disability.

Result

Dr. Pekarovics was dismissed prior to verdict for a waiver of costs. Defense verdict as to IV Solutions Clinical Pharmacy (no causation).

Deliberation

four hours

Poll

12-0 for liability; 10-2 no causation

Length

six days