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Dr. orders Liquibid--Lithobid dispensed--death results.

CASE ON POINT: Clifford v. Geritom Med., Inc., 681 N.W.2d 680--MN (2004)

CASE FACTS: Doris Clifford, age 84, and in reasonably good health, was recovering from a cold and reported her condition as "greatly improved" except for discomfort from a phlegm problem. She called Park Nicollet Central Clinic. She spoke to Susan Duffy, a registered nurse, and explained her symptoms to her. Dr. Gmitro then wrote an order for Liquibid, a decongestant. However, when Nurse Duffy called Dr. Gmitro's order for Liquibid, in to Doris Clifford's pharmacy, Geritom Med., Inc., Lithobid, an antidepressant containing Lithium, was dispensed. The patient took the Lithobid. Eight days after taking the Lithobid, the patient was hospitalized. She died three days later. Nurse Duffy, who had worked at Park Nicollet for 13 years and had been a nurse for 30 years, "did not remember" the specific telephone call she placed to the pharmacy. However, the information about the call was contained in an entry in the patient's computer chart. This information was entered at 4:35 p.m., on June 17. After entering the information, Nurse Duffy "discarded" the paper with Dr. Gmitro's "handwritten" prescription on it. The computer chart entry indicated that Dr. Gmitro called and talked to Clifford regarding a prescription for Liquibid #60 ii bid, which was to be called in to Geritom Pharmacy and was to be delivered to the patient's apartment building. Geritom pharmacy was the pharmacy Nurse Duffy telephoned. The pharmacy was a "closed door" or "dispensing" pharmacy. It primarily took orders for prescriptions over the telephone and then delivered the prescriptions directly to patients. The pharmacy served developmentally disabled, mentally ill, and mentally retarded patients living in group homes and elderly patients living in senior apartments. Geritom Pharmacist Daniel Sander Lee, Jr., answered Nurse Duffy's call and recorded the prescription on a telephone prescription form normally used by Geritom. Lee did not have any independent recollection of the call. However, the prescription form contained the following information: NAME: Doris Cifford [sic], ADDRESS: 5/8/15 [Clifford's date of birth]; MEDICATION/STRENGTH: Lithobid; SIG: #40 2 Tabs PO BID[sic]. In essence, the information on this form reflected a prescription for 40 tablets of Lithobid to be taken orally two at a time, twice a day, with one authorized refill. The drug Lithobid contains lithium and is used to treat bipolar or manic depressive disorders. Geritom Pharmacy filled the prescription, as recorded by Lee, and delivered it later that day to the patient's apartment building. The label on the bottom showed the contents to be Lithobid and contained the same instructions for taking the medication as were written on the form After receiving the prescription, the patient apparently placed a small label of her own in her own handwriting on the Lithobid container with the words "Lithobid --Decongestant." The District Court dismissed Geritom's third-party complaint for failure to state a claim upon which a relief could be granted. The court found that there was no common liability among the parties. In making this finding the court determined that even if it were true that Dr. Gmitro ordered Lithobid by error at most, Dr. Gmitro and Nurse Duffy were separate, distinct, and independent tortfeasors. Consequently, the court concluded that there was no common liability between them and Geritom because the act of "prescribing" the wrong medication could not have been jointly performed. The court found that even it were true that the physician negligently treated the patient, the patient's cause of action against Geritom arose before her admission to North Memorial, and North Memorial physicians and Geritom could not be joint tortfeasors. Before the start of trial, Geritom moved to add Dr. Gmitro, Nurse Duffy, and North Memorial physicians to the verdict form for the purpose of allocating fault. The court granted the motion as to Dr. Gmitro and Nurse Duffy but denied it as to the North Memorial physicians. Ultimately, the court granted the plaintiff's motion for a new trial. The defendants appealed. The Court of Appeals of Minnesota reversed the judgment of the District Court. The Plaintiff appealed.

COURT'S OPINION: The Supreme Court of Minnesota, reversing the lower court, held that the District Court properly granted the patient's motion for a new trial. Accordingly, the court reversed the Court of Appeals.

LEGAL COMMENTARY: The court concluded that the jury's finding that there was no negligence on behalf of the pharmacy was proper. The court held that when the jury made findings of negligence and causation with respect to Dr. Gmitro and Nurse Duffy this was not evidence of any mistake or confusion by the jury. The court concluded that the jury's finding that there was no negligence on behalf of the pharmacy did not prevent the trial court from granting the plaintiff's motion for a new trial. Therefore, after reviewing the evidence in this case, the court held that the lower court did not abuse its discretion when it granted the plaintiff's motion for a new trial. Accordingly, the court held that the trial court properly granted the plaintiff's motion for a new trial.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings 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 his recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, and Who's Who in America.
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Title Annotation:Nursing Law Case on Point
Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Geographic Code:1USA
Date:Jul 1, 2004
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