Hicks v. Zondag – Physician Liability in Prescription Overdose Deaths

Pain management has consumed a large portion of the medical industry over the last few decades, with the National Center for Health Statistics reporting that more than a quarter of all Americans over age 20 report having a problem with persistent pain lasting longer than a day.pills6.jph

Adults between 45 and 64 years of age are the most likely to report having chronic pain, lasting a week or more. Good physicians and health care providers seek to alleviate these ailments with a carefully-planned approach of physical therapy, medication or some combination of both.

The problem is that pain medications can be extremely powerful, particularly in concert with other drugs. In some instances, these adverse effects can even be fatal. The U.S. Centers for Disease Control and Prevention reports that drug overdose deaths have steadily climbed for 11 years straight, tripling since 1990.

In some of these situations, it may be appropriate to explore with an Asheville medical malpractice lawyer whether the physician was liable (or her employer vicariously liable) for a wrongful death by failing to use an appropriate standard of care in prescribing such dangerous medication.

Figures published recently by The Journal of the American Medical Association revealed three-quarters of those overdoses were unintentional.Some of those cases may have involved an individual who was addicted or abusing the drugs outside the scope of what was prescribed. However, many of these cases involve individuals who are simply following a doctor’s orders. If a physician is careless or over-prescribes certain substances, he or she should be held accountable.

This was the intention in the recent case of Hicks v. Zondag, reviewed by the Wyoming Supreme Court.

According to court records, the patient was treated for a variety of painful conditions between 2000 and 2006. She had to undergo numerous surgical procedures for problems that included gallstones, appendicitis, kidney stones, uterine cysts, a hysterectomy and colonic obstructions. She was frequently prescribed pain medications throughout this time, including hydrocodone, oxycodone, Demerol and morphine.

Her pain remained severe and persistent, and she fell into a depression as a result. Her doctor then prescribed her the antidepressant fluoxetine.

She was eventually referred to the defendant in this case, who is a board-certified family physician whose focus is on pain management. He prescribed her a drug called Actiq, which is a fast-acting form of the opiod fentanyl, which is delivered in the form of a “lollipop.”

Although the dosage was adjusted several times during the doctor’s treatment of this patient, it was increased significantly after 2008, when the patient underwent yet another surgery.

The patient complained the combination of drugs had begun to negatively impact her cognitive abilities, and the doctor attempted to wean her off. Her pain level shot up again, and she was again placed back on the previous high dosage.

Soon after, she died one night in her sleep. It was determined by a forensic pathologist that she died from pulmonary congestion and edema as a result of accidentally overdosing on her medications, which compromised her respiration while she slept.

Her estate filed a wrongful death lawsuit against both the pain management doctor and his employer.

In these cases, what must be proven is that the physician failed to meet the standard of care applicable to practitioners of their standing. That requires testimony from an expert witness, usually another doctor who has practiced or continues to practice the same kind of medicine.

Here in the Hicks case, the plaintiffs objected prior to the trial to the defense’s intention to use two expert witnesses, saying such testimony would be duplicative. The trial court rejected this, but pointed out that the plaintiff could object to duplicative testimony.

The jury ultimately sided with the doctor, and the estate appealed, again raising the issue of the two expert witnesses for the defense. However, both the appellate and later the state supreme court found nothing improper with this strategy, pointing out that the plaintiff made no objections to the testimony during the trial. The court indicated that situations in which a party wishes to call multiple experts is a case-specific determination, that requires a judge to weigh the competing interests in light of the nature of the case.

These kinds of medical malpractice cases, while often challenging, are winnable. In many situations, doctors will settle out of court before the case even reaches the trial phase.

To learn more about your options, contact an experienced lawyer today.

Contact our Asheville medical malpractice lawyers at Lee Law Offices today by calling 800-887-1965.

Additional Resources:
Hicks v. Zondag, Jan. 28, 2014, Wyoming Supreme Court

Physician liability: When an overdose brings a lawsuit, March 4, 2013, By Alicia Gallegos, American Medical News

More Blog Entries:
Schroeder v. Weighall – Misdiagnoses and the Statute of Limitations, Jan. 30, 2014, Asheville Medical Malpractice Lawyer Blog

Contact Information