Hospital's liability for overdose of OxyContin.

PATRICIA PLANTICO UNDERWENT SURGERY AT FROEDTERT MEMORIAL LUTHERAN HOSPITAL. The purpose of the surgery was to relieve chronic back pain. After the surgery, the patient's physician, Dr. Dennis Maiman, prescribed morphine to alleviate the patient's pain. The pain was not adequately relieved by

the morphine. Dr. Maiman prescribed eighty milligrams of OxyContin, a timed-release narcotic, to be given every twelve hours. The patient received her first dose of Oxycontin at midnight. The following morning, the patient complained to the nurses that she felt shaky, nauseous, and overmedicated. A nurse gave the patient a second dose of OxyContin at 9:25 a.m., approximately two and one-half hours earlier than ordered. The patient pressed her call button between one o'clock and two o'clock in the afternoon. At approximately two o'clock, a nurse found the patient unresponsive in bed. The hospital's code team performed CPR on the patient and transferred her to the hospitals' Intensive Care Unit (ICU). The patient was on life support for five days. She died without regaining consciousness. The patient's estate brought suit against Dr. Maiman, who it alleged was negligent and the hospital's employees who allegedly caused the patient's death. The hospital settled with the patient's estate and was dismissed from the case before trial. The estate's theory was that Dr. Maiman was negligent because the dose of OxyContin was too high. The estate claimed that this alleged overdose caused the patient to be "intoxicated," choke on her own vomit, and die. Two expert witnesses testified for the estate. Curtis Johnson, Ph.D., testified that eighty milligrams of OxyContin was "far too large a dose for a woman of [Plantico's] size" and that a high dose of OxyContin, such as the dose administered to Plantico, could cause "profound respiratory depression, nausea, vomiting, [and] an inability to walk easily or normally." Dr. mark Boswell, testified that eighty milligrams of OxyContin "was totally inappropriate" because "[i]t was a humongous dose." Dr. Boswell testified that the OxyContin "caused [Plantico's] arrest." Dr.-Boswell also testified that the nurse who administered the second dose of OxyContin too early "elevated the contribution to [the patient's] arrest by 20 percent." The hospital appealed.

THE COURT OF APPEALS OF WISCONSIN AFFIRMED THE JUDGMENT OF THE LOWER COURT. The court rejected the estate's claim that the real controversy was not fully and fairly tried when the trial court instructed the jury that it had already answered the special verdict question as to whether the hospital was causally negligent as "yes." The court ignored the estate's claims that this instruction misled jurors into concluding that Dr. Maiman was not negligent. The estate further claimed that this error was compounded by an order that prevented it from presenting any evidence that the negligence of the hospital's employees was causal. The court refused to consider this claim, however, because it was "waived." The court concluded that because the estate failed to raise this issue in its motions after the verdict and was raising this issue for the first time on appeal, the court was compelled to decline to address the issue. The court concluded that an appellate court will not review an issue raised for the first time on appeal.

THE JURY FOUND THAT THE NEGLIGENCE OF THE HOSPITAL'S EMPLOYEES WAS THE CAUSE OF THE PATIENT'S DEATH. However, the appellate court noted that the parties had stipulated that the hospital was negligent in its treatment of the patient. Thus, the trial court answered in "yes" for question one on the jury verdict form "before" the court gave the form to the jury. The trial court also instructed the jury as follows: "Question Number Two asks whether there was a causal connection between the negligence on the part of the employees of ... [the] hospital ... and the patient's injury and death." The court concluded by stating "I have answered "yes" because it is not contested and I would say that "yes" is the proper answer." The court found that Dr. Maiman was not negligent in his care and treatment of the patient. The jury also found that the negligence of the hospital's employees was the cause of the patient's death. The jury properly left the questions on the jury form relative to causal negligence blank. Notwithstanding the foregoing, the estate's motions after the verdict asking the trial court to enter an order of JNOV was denied. The court rejected the plaintiff's claim that the verdict was not supported by credible evidence and affirmed the lower court's refusal to apportion the jury's finding as to causal negligence between the defendant physician and the hospital which settled the case against it. Plantico v. Froedtert Memorial Lutheran Hospital, 647 N.W. 2d 468--WI (2002)

A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Rhode Island law firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writing as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.