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Mom who overdosed girl can sue for distress

A mother who used an allegedly mislabeled prescription pain medicine to accidentally overdose her young daughter can sue the pharmacy for intentional infliction of emotional distress, a Danville federal court has ruled.

The mother’s emotional distress claim survived a motion to dismiss, even with­out a record of visits to a physician or a mental health provider.

Under the federal pleading standard, “rather than the stricter Virginia stan­dard,” the mother’s allegations of “phys­ical inconvenience and other physical ramifications” were “sufficiently specific and severe” to state a plausible claim, U.S. District Judge Eliza­beth K. Dillon said.

The court discounted dicta from an oft-cited Virginia Supreme Court case that has been interpreted to require overt physical symptoms.

An emphasis on the defendant corpo­ration’s “recklessness” helped push the mother’s emotional distress claim past the line of plausibility, according to one lawyer familiar with the pleadings.

In “mislabeling” cases, “most of the time, you don’t have any information about how the mislabeling occurred,” and “reckless, intentional conduct can’t be discovered” in the early pleading stages, said Roanoke lawyer Anthony M. Russell. Russell represents plaintiffs in medical malpractice cases, but was not involved in this case.

Russell said the plaintiff’s ability to identify for the court “three different safeguards instituted to prevent” incor­rect dosage strengthened the mother’s emotional distress claim.

Martinsville lawyer Robert W. Mann, who represented the mother, declined comment on the case.

Routine surgery

The mother’s lawsuit alleged that she brought her 5-year-old daughter home af­ter a routine operation to remove her ton­sils and adenoids, and followed instruc­tions for giving her child pain medication.

But instead of giving her daughter the dosage prescribed by her doctor, she fol­lowed the directions on the prescription filled by the defendant CVS pharmacy and gave the child five times the pre­scribed amount, according to her lawsuit.

When the child became unresponsive, her parents drove her to a hospital emer­gency room and she was airlifted to Duke University Medical Center. She survived the overdose, but her mother alleged she remains fearful that her daughter could develop additional symptoms in the fu­ture.

Series of missteps

The suit filed by Sara B. Holley, for herself and for her daughter Sadie Mae, alleged the defendant pharmacy made a series of missteps in providing the med­ication.

The child’s doctor allegedly provided a “clearly typed” prescription for 2.5 ml Roxicet 5-325 mg/5 ml solution every four to six hours as needed, the suit claimed. Roxicet contains a mixture of oxycodone and acetaminophen and is classified as a Schedule II controlled substance, the mother alleged.

Federal and state regulations require pharmacies to carefully inspect and “dou­ble count” the drug and to provide medi­cation counseling before dispensing, the suit claimed. To meet these standards, CVS reportedly has implemented a series of safeguards, including a computerized “high-dose safety alert warning system,” which require an override before filling a prescription flagged with an alert.

Despite those supposed safeguards, CVS mislabeled the Roxicet prescription with direction to take 2.5 to 3 teaspoons instead of milliliters, every four to six hours, which the mother dutifully ad­ministered in a series of five doses, she claimed.

The mother said that witnessing her daughter’s rapid decline and emergency treatment, and knowing that she had dis­pensed the potentially lethal pain medi­cation, led to “ongoing genuine hurt and anguish,” “difficulty sleeping, ongoing fear for her daughter’s well-being, anxi­ety and depression.”

Sara Holley also described suffer­ing from the emergency room doctors’ shocked reactions and the “cool and ac­cusatory” attitude expressed by CVS cor­porate management. The mother charged that CVS intentionally or recklessly acted in an “outrageous and intolerable manner.”

‘Outrage’ element

In its motion to dismiss, the defendant pharmacy argued that the mother had failed to allege the pharmacist’s “conduct was malicious, outrageous or offensive to accepted standards of decency” and that her claims of distress did not include any “objective physical injury “ or “any medi­cal attention sought or received” because of the distress.

There is no “steadfast rule” from the Supreme Court of Virginia for distin­guishing “mere insults” from the “out­rageous behavior” that characterizes emotional distress claims, according to Dillon’s Aug. 3 opinion in Holley v. CVS Caremark Corp.

The “test is not whether CVS’s actions meet an objective definition of the term,” but whether considering the totality of CVS’s behavior would lead a reasonable person to exclaim, “Outrageous!” Dillon wrote.

Based on the mother’s allegation of a “complete and utter systemic breakdown” of the defendant’s “multi-level check­points and safeguards,” the pharmacy had dispersed the medication without a measuring device, intentionally overrode a computerized high-dose safety-alert system and failed to double-count the pre­scription or provide medication counsel­ing as required by law, the suit claimed.

Each of the alleged missteps by the de­fendant might not meet the standard, but the entire sequence showed “a pattern of misconduct that plausibly went beyond the bounds of decency and rose to a de­gree of outrageousness,” the court said.

‘Objective injury’

Virginia courts have relied heavily on a 1991 Virginia Supreme Court case, Russo v. White, to look for some kind of clinical evidence of physical symptoms to support an emotional distress claim. In Russo, the court alluded to the necessity of “objec­tive physical injury,” “medical attention” or a “hospital stay” or “lost income.”

“Though these symptoms appear only in dicta, Virginia circuit courts seem to have adopted the Russo factors as a rule,” Dillon observed.

The 4th Circuit, however, has said the federal Rule 8 pleading standard trumps Virginia’s heightened pleading standards for a claim of intentional infliction of emotional distress in federal cases gov­erned by state law, the court said.

Under this standard, the mother’s claims of continued “physical ramifica­tions” and being “rendered less capable of performing her normal daily tasks” passed muster in federal court.

Danville lawyer Sandra T. Chinn-Gil­strap, who represented the defendants, could not be reached for comment.

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