Family accuses Houston pharmacy in morphine death of 6-year-old girl

[TexasTowelie]

The mother of a deceased child who struggled with sickle cell disease has sued a Houston pharmacy for allegedly dispensing a painkiller at 10 times the strength prescribed.

Jadalyn Diana Elizabeth Williams, 6, died last year after receiving one dose of a morphine medication for pain associated with a sickle cell crisis.

A medical malpractice lawsuit filed Tuesday by Simone Allen accuses Cullen Care Pharmacy of causing her daughter's death by dispensing 150 milligrams of morphine sulfate instead of the 15 milligrams prescribed.

-snip-

The family's lawyer said he had been attempting to settle with the pharmacy's insurance company, but "negotiations broke down."

More at http://www.chron.com/news/houston-texas/houston/article/Family-accuses-Houston-pharmacy-in-morphine-death-4748123.php?cmpid=hpbn .

[font color=green]A sad story to read. I'd also wish we knew how much insurance the pharmacy carried since it would give the public some background as to any adverse effects of the changes in tort reform law. The limits on non-economic damages come into question since insurance companies wouldn't view the death of a non-wage earning child as a substantial economic loss. My apologies in advance since I know that statement is callous.[/font]

[chervilant]

1. Likely that the pharmacy's attorney is

banking on the family 'giving up' in the face of the time and money commensurate with pursuing a lawsuit against a corporate entity.

[TexasTowelie]

2. I'm also suspicious as to whether the insurance company is low-balling the settlement offer

due to racial issues. Is the death of a white child worth more than the death of a black child? I'm making that assumption since sickle cell anemia was mentioned in the article.

[Ilsa]

3. Sickle cell is a horrible disease to suffer

from.
I wonder if a jury trial is possible with a potentially better financial outcome to the family?

[TexasTowelie]

4. Since this is being filed as a medical malpractice claim, I believe that the following will apply:

The limit on non-economic damages for medical malpractice cases varies based on whether the defendant is a health care provider, including a physician, or a health care institution. If final judgment is rendered against a health care provider, a $250,000 per claimant cap applies to non-economic damages, regardless of the number of defendant providers (Tex. Civ. Prac. & Rem. Code Ann. § 74.301(a)). The cap is not indexed for inflation.

If final judgment is against a single health care institution, a $250,000 per claimant cap applies to non-economic damages. If the judgment is against more than one institution, a $250,000 per claimant cap applies to non-economic damages per defendant. Total non-economic damages awarded are further capped at $500,000 per claimant (Tex. Civ. Prac. & Rem. Code Ann. § 74.301(b) & (c)). The caps are not indexed for inflation.

In a medical malpractice wrongful death or survival claim, if final judgment is rendered against a health care provider, a $500,000 per claimant cap applies to all damages, regardless of the number of defendant providers. This cap is indexed for inflation. It does not apply to necessary medical, hospital, or custodial care received before judgment or required in the future (Tex. Civ. Prac. & Rem. Code Ann. § 74.303(a), (b), & (c)).

A wrongful death claim is a statutory cause of action that may be brought on behalf of a surviving spouse, children, and parents of the deceased to compensate them for the losses sustained as a result of the wrongful death of their family member (Tex. Civ. Prac. & Rem. Code Ann. § 71.002). A survival claim is a statutory cause of action brought to recover damages sustained by the decedent for personal injury. The claim survives death in favor of the heirs, legal representatives, and estate of the injured person. The claim also survives the death of the person liable for the injury (Tex. Civ. Prac. & Rem. Code Ann. § 71.021).

http://www.cga.ct.gov/2004/rpt/2004-r-0918.htm

So while there are some medical expenses involved and there is the possibility of an exemplary damage award (in which case gross negligence would need to be proven), it looks like the damages will be limited by various caps and would probably be below $1 million (I haven't done any calculations for the inflation-indexed cap). That is a mere pittance for the life of a six-year-old child, but that is how the system is rigged in favor of the plaintiffs due to the tort reform law changes that occurred in 2003.

My guess is that the pharmacy might carry $1 million in liability insurance (that would allow for larger economic damages to be awarded in a civil justice action). If the plaintiff's attorney asked for more than that, then I can understand why the negotiation broke down.

I'll state that I don't agree with those limits and I had concerns with tort reform dating back to the 80s, but that is what occurs with corporate/business interests dominate the Legislature when Republicans are in control.

The plaintiffs don't have to accept the settlement that is offered by the insurance company, but by continuing to litigate the case the expenses for inquiry and dispositions actually eat into the capped amount and the plaintiff can actually receive less money. It's a perverse system and I'll also add that it usually takes a medical malpractice claim between 3 and 4 years to close from the date of the injury (or at least it took that long when I worked on tort reform years ago).