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Plaintiff claimed she experienced allergic reaction to Doripenem – Defense Verdict

Virginia Lawyers Weekly//April 27, 2015

Plaintiff claimed she experienced allergic reaction to Doripenem – Defense Verdict

Virginia Lawyers Weekly//April 27, 2015

On Oct. 30, 2009, the plaintiff was admitted to Memorial Hospital of Martinsville under the care of the defendant family practice due to spreading cellulitis of the face. At the time of her admission, the plaintiff informed hospital staff that she was allergic to penicillin. The defendant prescribed several medications to treat the plaintiff’s cellulitis including Bactrim. The next day, the defendant received a telephone call at home after 5:00 p.m. from a nurse who advised that the plaintiff’s symptoms were persistent and she still had a high fever. The defendant placed a telephone order with a nurse for Merrem, and a derivative of Merrem (Doripenem) was administered to the patient. At the time of the order, the defendant did not have the plaintiff’s chart in front of him, and he did not remember that the plaintiff was allergic to penicillin.

In the following days, the plaintiff experienced an adverse reaction that later developed into Stevens-Johnson Syndrome in its most severe form: toxic epidermal necrolysis in which blisters and erosions cover 3 to 10 percent of the body.

Plaintiff made a full recovery, with some permanent scarring. It was uncontested that the plaintiff had incurred approximately $30,858 in medical bills as a result of the reaction.

Plaintiff’s expert contended that Doripenem was the agent that caused plaintiff to develop Stevens-Johnson Syndrome. He testified that Merrem and Doripenem are contraindicated in patients, like the plaintiff, who have a known hypersensitivity to penicillin. He further testified that the defendant breached the standard of care by prescribing the plaintiff Merrem when he knew or should have known it would cause the plaintiff injury as a result of her penicillin allergy. Finally, he testified that the defendant’s failure to inquire about the plaintiff’s allergies before giving the telephone order fell below the standard of care.

The defendant’s standard of care expert, Dr. Clifford Nottingham, testified that Merrem was an appropriate choice of medication and that it was reasonable for the defendant to prescribe it under the circumstances of this case. He further opined that the defendant did not have an affirmative obligation to ask the nurse if the plaintiff had any allergies to the medication being prescribed. In addition, hospital pharmacy employees testified that the pharmacy system issued a warning advising staff that the plaintiff had a cross-sensitivity to Merrem/Doripenem, and there was no evidence to indicate that a call was made to the defendant to notify him of the warning.

The plaintiff had settled with the hospital prior to trial, and an undercurrent throughout the case was the hospital’s role vis-à-vis the defendant family physician’s role under the Jenkins v. Payne, 251 Va. 122, 465 S.E.2d 795 (1996) and Atkinson v. Sheer, 256 Va. 448, 508 S.E.2d 68 (1998) cases. Those cases prohibit a defendant from defending his own negligence by arguing that another party not present at trial was negligent, unless that party’s negligence constitutes a superseding intervening cause. Ultimately, the defendant was able to put on evidence of the hospital’s factual role in the case and how it influenced his care and treatment.

The defendant’s causation expert, Dr. Paul Axelsen, opined that Doripenem did not cause any injury to the plaintiff. Rather, she experienced a toxic reaction to a different medication, Bactrim, which the plaintiff acknowledged was appropriately prescribed. His opinion was supported by deposition testimony and medical records, which demonstrated that the plaintiff suffered toxic reactions to Bactrim in 2006 and 2010, before and after the reaction at issue in the case. His opinion was further supported by the fact that Bactrim is more likely than Doripenum to cause a blistering-type reaction.

At the jury instruction phase, plaintiff argued for a special instruction on causation fashioned from Ford Motor Co. v. Boomer, 285 Va. 141, S.E.2d 724, to address the issues plaintiff believed were presented by the hospital’s role.  The defendant objected to the instruction, arguing that the instruction was unique to asbestos cases and that the standard VMJI on proximate cause – which provides that there can be more than one proximate cause of a plaintiff’s injuries – properly addressed the causation issues presented.  The court agreed and rejected the instruction.

After a four-day trial, and after deliberating for approximately two hours, the jury returned a defense verdict.

Plaintiff filed post-trial motions on several grounds, including the court’s rejection of the causation instruction crafted from Boomer. By letter opinion dated Jan. 22, 2015, the court denied the plaintiff’s post-trial motions and a final order entering judgment on the jury’s verdict was entered on Feb. 18, 2015.



Type of action: Medical malpractice
Injuries alleged: Plaintiff experienced an adverse reaction to a drug, which developed into Stevens-Johnson Syndrome
Court: Martinsville Circuit Court
Judge: G. Carter Greer
Date resolved: Oct. 30, 2014
Special damages: $30,858
Demand: Ad damnum of $2,000,000
Offer: There was no offer of settlement by the defendant physician
Verdict or settlement: Defense verdict
Attorneys for defendant: Walter H. Peake III and Julie V. Andrews, Roanoke
Attorney for plaintiff: Robert W. Mann, Martinsville
Defendant’s experts: Clifford Nottingham, M.D., Paul Axelsen, M.D.
Plaintiff’s experts: Charles E. Lamb, M.D., Dr. Margaret Campbell, M.D.
Insurance carrier: The Doctors Company




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