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Medical Malpractice/Fraud – Pain Pump Implant, Fentanyl Lollipops

$2,050,000 – Medical Malpractice/Negligence

Facts

Pain doctor implants a pain pump and prescribes pain pump meds and fentanyl lollipops that could only be obtained through his pharmacy and surgical center.

Plaintiff Jane Doe suffered an industrial injury to her back, which disabled her from working. Mrs. Doe treated with various workers’ compensation doctors. She underwent an anterior-posterior fusion at L4-5 and L5-S1. She had substantial back pain. She tried physical therapy and one of her treating doctors tried different narcotic pain medication, including a pain (fentanyl) patch. The narcotic pain medications caused dizziness, nausea, and sedation, and were discontinued.

On September 9th, Mrs. Doe began treating with a pain doctor for her work-related injuries. He became her primary treating physician. She told the pain doctor that she was extremely sensitive to opiates and that she had tried and failed a Duragesic patch (fentanyl patch). After the initial consultation, the pain doctor immediately requested authorization to proceed with an intrathecal pain pump trial for Mrs. Doe and anticipated ultimately implanting a 10 cc Medtronic pump in her. The pain doctor also immediately prescribed for Mrs. Doe compounded fentanyl lollipops, which he developed with Roe Pharmaceutical.

Defendant Mr. Zoe held himself out as the CFO of Roe Pain Management. His wife, Mrs. Zoe, was the general partner of Roe Pharmaceutical and Roe Pain Management. She and her husband are limited partners of the pharmacy, together owning and controlling 100% of the pharmacy. The pain doctor maintains a security interest in Roe Pharmaceutical. When Mrs. Doe was unable to fill the prescriptions at her regular pharmacies, she called Dr. Roe and his office personnel told her she could get the lollipops at Roe Pharmaceutical, and she in fact obtained the lollipops from Roe Pharmaceutical, one of several compounding pharmacies located in the county. Dr. Roe specially compounded this lollipop with a very small amount of dextromethorphan, 2 mg, so that his patients would have to fill the prescription at a compounding pharmacy.

Dr. Roe started prescribing these fentanyl lollipops to Mrs. Doe despite the fact that she told him she was sensitive to fentanyl. Mrs. Doe experienced adverse reactions to the lollipops, which included nausea, dizziness, lightheadedness, throbbing headaches, and stomach pain, similar to the types of adverse effects she had with the Duragesic patch and other narcotics attempted in the past.

Dr. Roe did not disclose to Mrs. Doe that he had an ownership interest in Roe Pharmaceutical.

On November 21st, Dr. Roe inserted an intrathecal catheter in Mrs. Doe and started her pump trial at Roe Pain Management, a surgical center also owned and controlled by Dr. Roe. The usual duration of a pump trial is three to 10 days. Mrs. Doe’s pump trial lasted 20 days. During Mrs. Doe’s pain pump trial, Dr. Roe was informed about all the side effects and complications that Mrs. Doe encountered. All the records indicate that at best she got 35% pain relief, and she had multiple side effects, including headaches, rashes, dizziness. Dr. Roe admitted in his deposition that by the patient’s reports, she only obtained about 35% pain reduction.

After the pump trial, Mrs. Doe had a cerebral spinal fluid leak associated with the trial, causing headaches. Dr. Roe noted that the headaches were related to the pump trial and talked about doing a blood patch to repair it. That was never done. On January 17th, Mrs. Doe had a syncopal episode (fainted), fell, striking her head and face, and was knocked unconscious. She suffered a serious closed head injury and still has headaches and a serious neck injury. The cerebral spinal fluid leak was never repaired.

On March 31st, following the failed pump trial, and Mrs. Doe’s severe complications, Dr. Roe went ahead and implanted a 10cc pain pump, which requires many more refills and visits than would a pain pump in the proper size for this patient.

Mrs. Doe’s pain pump contained very high doses of Fentanyl. The doses administered by defendant were substantially higher than those being administered intrathecally by other pain doctors, i.e., milligrams of fentanyl as opposed to micrograms. This high dose of Fentanyl was being manipulated by the nurses at Roe Pain Management without a signed physician’s order. Consequently, Mrs. Doe suffered pulmonary problems caused in part by the high dose of fentanyl in the pain pump. During this time, Mrs. Doe’s mental and physical health deteriorated. The 10cc pain pump was eventually removed by another doctor.

Allegations

Medical negligence in the care and treatment of plaintiff’s back pain; implantation of a pain pump despite failed pump trial; prescribing fentanyl in a patient with known sensitivity; failure to disclose financial interest in pharmacy that supplied narcotics and other drugs for the pain pump.

Contentions

Plaintiffs alleged medical negligence, lack of informed consent and breach of fiduciary duty, and fraud by negligent and intentional misrepresentation and concealment as to Dr. Roe and Roe Pain Management. Plaintiffs further alleged civil conspiracy to commit fraud as against Dr. Roe and Mr. and Mrs. Zoe. Plaintiffs determined through discovery that Dr. Roe is the sole shareholder, CEO, CFO, President and Secretary of Roe Pain Management. As owner, he established an intrathecal controlled substance policy requiring all controlled substances be obtained from Roe Pharmacy. He established a policy allowing Roe nurses to adjust pump infusion rates at their discretion, without a signed physician’s order.

Plaintiffs also alleged that as an adult woman, if Mrs. Doe was going to have an intrathecal pump installed, she should have received the adult-sized pump with a 20cc reservoir. Instead, without indication, defendant Dr. Roe installed the pediatric-sized 10cc intrathecal pump with a 10cc reservoir, requiring Mrs. Doe to come back three times as often to have the pump refilled, and Dr. Roe could charge for each one of the refills, both for the narcotics that were coming from the pharmacy in which he had an interest, as well as for the service itself.

Plaintiffs further claimed negligent and intentional infliction of emotional distress as against Dr. Roe and Roe Pain Management, along with a claim for loss of consortium brought by Mr. Doe.

Defendants denied all allegations. The defendants’ ultimate position was that this case was nothing more than a medical malpractice action.

Injuries/Damages

As a direct result of the care and treatment rendered to Mrs. Doe by Dr. Roe, her functional abilities have declined in terms of her activities of daily living, she suffers from spinal headaches, post-traumatic headaches, post-concussive syndrome, light sensitivity, myelomalacia of the spinal cord in her neck possibly requiring future surgery, along with a pulmonary embolism. She has undergone two unnecessary surgeries (implanting and explanting the pump), and has been forced to go through detox for narcotics addiction and withdrawal. Mrs. Doe has suffered two years of worsening side effects from the narcotics administered by Dr. Roe, and her cognitive abilities have been negatively affected. She has been, and continues to be, unable to work in any gainful form of employment.

Since Mrs. Doe had a prior disability, there was no claim made for income loss. All of her prior medical expenses were covered. The worker’s comp carrier asserted a lien in the amount of approximately $395,000.00.

Special Notes

Plaintiff Jane Doe served Statutory Offers to Compromise in the amount of $975,000.00 separately to each of the defendants. Plaintiff John Doe served Statutory Offers to Compromise in the amount of $25,000.00 separately to each of the defendants.

Defendant Roe Pharmaceutical served a 998 Offer to Mrs. Doe in the amount of $25,000.00, which was rejected, and to Mr. Doe in the amount of $15,0001.00, which was accepted.

In mediation sessions, an initial settlement offer on behalf of all defendants was made in the amount of $250,000.

Ultimately, the matter was resolved as to both plaintiffs for the total amount of $2,050,000 (in addition to the $15,001 previously paid to Mr. Doe), consisting of payment by Dr. Roe of $900,0000; payment by the Zoe defendants of $575,000; and payment of $575,000 by Roe Pain Management.


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