Personal Injury Law Journal

I recently had a new client come into the office who was suffering from several significant medical issues. The cause of these issues was the medication he was taking. Unbeknownst to him when his prescription for acid reflux was filled by the pharmacist he was given the wrong medication. He was actually given a medication to treat a heart disorder instead. Because the pill color, size and shape was similar if not identical he took the wrong medication for a month before realizing the error. During this month he was experiencing symptoms and having problems which he never imagined were caused by the medicine provided to him by the pharmacy. He is still sick and as of now does not know if these symptoms will ever go away.

In the United States literally billions of prescriptions are filled annually in pharmacies. Some recent studies have suggested that up to five percent of all prescriptions filled contain errors. These pharmacy errors include negligence in dispensing, failure to give proper warnings or instructions, errors in labeling, errors in compounding, contaminating a prescribed drug and others. Perhaps the most common of these errors as was the case with my client are dispensing errors. Errors which can occur in dispensing include placing the medication in the wrong bag so that it is given to the wrong patient, the medication is labeled incorrectly or the chemist dispenses the incorrect dosage of the medication.

Unfortunately the negative effects of pharmacist or pharmacy errors are numerous. The implications are very serious since people rely on their correctly prescribed drugs to ensure their health and without these drugs are put in danger. Additionally the incorrect drug which has been received can cause serious health risks and dangers which places the persons health and well being in danger.

In New Jersey pursuant to State law the practice of pharmacy is declared a health care professional practice affecting the public health, safety and welfare and is subject to regulation and control in the public interest. The State recognizes that “Medication error” is a preventable event that may cause or lead to inappropriate use of a medication or patient harm. In New Jersey as in most states a pharmacists negligence in providing the wrong drug is actionable. It is only fair that public policy favors a tort scheme which encourages pharmacists to exercise great care in filling prescriptions. To not allow civil liability would be to remove one deterrent against the negligent dispensing of drugs. New Jersey Courts have followed the lead of others in declaring that the claim of a pharmacist providing the wrong drug is one involving “clear and palpable negligence.” In one instance the Court indicated that the deviation by a pharmacist who provides a drug different than the one prescribed is as clear as the deviation of a dentist who pulls the wrong tooth.

What this case shows is that you as the patient and the person receiving your drugs must be vigilant in making sure you are provided with the correct medication. Always check to make sure the drug received is the proper drug. Check that label and make sure the name of the person and the drug is correct. And check the pill itself to make sure it is the same one you know is correct. If you ever have a problem as a result of receiving the wrong drug immediately seek medical assistance. If the results or problems caused are serious to you then consult an attorney to preserve your legal rights. People trust not merely their health but in some instances their lives to the knowledge, care and prudence of pharmacists, and in some cases even a slight want of care can prove to be fatal. It is therefore proper and reasonable that the care required shall be proportioned to the danger involved.

Mike Foster is a Shareholder in Stark & Stark’s Marlton, New Jersey office, concentrating in Accident & Personal Injury Law. For more information, please contact Mr. Foster.

Back pain and back injuries are common workplace occurrences.  When conservative treatment fails, epidural shots are a common tool used to treat back pain.  In recent weeks, there has been an outbreak of fungal meningitis related to tainted epidural shots.  While fungal meningitis is not contagious, it can spread from the protective membranes covering the brain and spinal cord through the blood to the spinal cord.  The tainted medication, which has been linked to a compounding center in Massachusetts, was recalled on September 26, 2012 and on October 4, 2012.  The CDC recommended that all medical providers remove the medicine from their inventories.  Therefore, the supply should be out of circulation and, going forward, the public should be safe.    

However, the backlash from the tainted medication continues.  On October 23, 2012, the CDC reported 308 people have contracted illnesses linked to tainted epidural injections in 17 states.   Michigan, Tennessee and Virginia have been the hardest hit, but New Jersey reports 17 illnesses related to the steroid shots.  In most cases, symptoms of illness will occur within 1-4 weeks.  If you have had an epidural injection in the last few weeks, you should watch closely for symptoms and report them immediately to your medical provider.  Symptoms include:  new or worsening headache, fever, sensitivity to light, stiff neck, new weakness or numbness in any part of your body, slurred speech, and increased pain, redness or swelling at your injection site.  

If you are concerned that you have been affected by the tainted medication, contact your medical provider.  For updates and the newest information about fungal meningitis, visit the CDC website, which is updated regularly.

Vicki Beyer is a Shareholder in Stark & Stark’s Lawrenceville, New Jersey office, concentrating in Workers' Compensation Law. For more information, please contact Ms. Beyer.

One of the more difficult things that personal injury attorneys have to do is to explain to the family of someone who has died as a result of the negligence of another, how New Jersey law values their loss. Imagine that a loved one – a mother, father, child or spouse – has died as a result of an automobile accident or medical mistake. What would you consider to be the most significant element of damages for this loss? Most people would say that the loss of a special person causes great pain and suffering as well as psychological pain to those who are left behind. The unique characteristics of the loved one which made him her or her so special would also be mentioned. Unfortunately, these very real factors in the loss of a loved one have no value under New Jersey law, much to the shock and chagrin of those who are suffering as a result of the loss.

Wrongful death claims in New Jersey are controlled by a statute – N.J.S.A. 2A:31-1 – as they are in all states, because wrongful death claims are not found in the common law and are purely creatures of statute. New Jersey's Wrongful Death Act is a "pecuniary loss only" statute, which recognizes as elements of loss the dollar value of the lost contributions to the family unit, and nothing else. New Jersey courts have urged the legislature to amend this statute to more accurately reflect the actual losses sustained in the case of a wrongful death, but the legislation remains the same. In point of fact, both the New Jersey Senate and Assembly passed a wrongful death bill several years ago, but it died on the governor's desk when he refused to sign it. This antiquated law has caused numerous unjust results, and ultimately caused the New Jersey Supreme Court to engage in Solomon – like behavior in an attempt to reconcile a very difficult situation, in Green v. Bittner, 85 N. J. 1 (1980).  In this tragic case, a young woman about to go away to college died in an automobile accident. Her family sued for damages as a result of her death, and the jury, acting in accordance with the courts jury instructions, awarded zero damages, when they found that the cost of the young woman's personal maintenance (college tuition, etc.) outweighed any likely economic contribution she would make to the family unit. As harsh as it may sound, the loss of their beloved child had more positive economic ramifications for the family than negative. Does this mean that human life has no value ? Can a New Jersey Court affirm a ruling that awards zero damages for the loss of a precious life?

The Supreme Court struggled with the tension between the statutory language and the unjustness of this result, and arrived at a compromise which, although unsatisfactory, gives a jury a basis to award money damages when the deceased was not making a purely economic contribution to the family. The court found that while compensation for emotional loss is not allowable, the pecuniary or marketplace value of companionship which would have provided services equivalent to those received by the aged or infirm from hired companions, nurses or practical nurses is recoverable, as well as the marketplace value of advice and counsel such as could be purchased from a business advisor, therapist or trained counselor. The value of these services may be determined by an economist or actuary, and a dollar value may be reached which, in theory, compensates the survivors for the loss of the services. While everyone knows that the economic losses which are recoverable under this judicial interpretation of the Wrongful Death statute do not reflect the real losses which have been sustained, it is better than nothing. The only way to solve this problem, once and for all, is for the legislature to amend the Wrongful Death Act, and for the governor to sign it into law.

John Sakson is a Shareholder and Co-Managing Direcotr of  Stark & Stark’s in the firm's Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Sakson.

Prescription errors by pharmacies are a wide spread problem. Many pharmacies employ non-pharmacist assistants to actually fill the prescriptions. While these assistants are required to be under the supervision of the licensed pharmacists who are physically present at the pharmacy, the high volume of prescriptions that are filled at many pharmacies sometimes makes the supervision spotty.

The bottom line is that whenever you pick up a prescription, check the label on the bottle to make sure that the medication is what was prescribed. If it is a refill and you are familiar with what the pills look like, you should make sure that the pills look the same. Even if the label is correct, the pills may not be. Any discrepancies should be brought to the attention of the pharmacist before you take the medication. These simple steps may help you avoid a serious injury.

While most children who develop cerebral palsy have uneventful births, in a small percentage of children, however, their births are associated with a period of oxygen deprivation. The medical records in such cases will typically refer to perinatal asphyxia or hypoxic-ischemic encephalopathy. Where the period of oxygen deprivation at birth is due to medical malpractice, the injured child may have a right to monetary compensation for his injuries.

In the 1990s, the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics issued a report which had a clear purpose: to make it almost impossible to prove that any case of cerebral palsy was caused by oxygen deprivation at birth and, hence, by obstetrical negligence.

Fortunately for children with cerebral palsy who have been the victims of obstetrical malpractice, the advent of a new technology in the past five years has changed the legal landscape. So-called cool cap technology has become available in essentially all large hospitals offering care to newborns. This technology offers hope of salvaging more brain function in newborns who have been subjected to oxygen deprivation during the time of labor and delivery. In order to justify using this technology, however, the hospitals require that severe oxygen deprivation at or near birth be diagnosed. If the ACOG standards were used, no infants would get cool cap treatment. Thus, in practice in the real world the ACOG standards have been shown to be what they are: a legal stratagem rather than a scientific statement. A by-product of the use of the cool cap technology is that the medical records are now more honest. In the cases of children who receive cool cap treatment and who still go on to develop cerebral palsy, the medical records now permit a fairer assessment of whether obstetrical negligence was a cause of their brain injuries.