The plaintiffs’ attorney called on several experts who testified about the faulty manufacture of the patch and explained how a leak in the reservoir that held the medication could result in a toxic overdose.

The drug company countered with experts who swore that the patch was safe if used properly and that any problems with its manufacture had been resolved before Mrs. M started using it.

Then it was Ms. J’s turn to offer her version of the fateful phone call. The patient reported nausea and feeling faint, Ms. J said. She mentioned no other symptoms. Had Mrs. M complained of breathing difficulties, seizures, confusion, or tremor, the NP insisted, she would have told the patient to go to the nearest hospital right away.

During closing arguments, Ms. J’s attorney acknowledged that the case was tragic but maintained that the NP was not to be faulted. Mrs. M had not given essential information that would have indicated how ill she was when she called.

The jury deliberated for six hours. It found Ms. J to be 20% at fault and thus responsible for 20% of the $13 million award.

Legal background

Juries often apportion fault among defendants and find one to be more liable than another. In this case, the jury believed the patch manufacturer should bear 80% of the responsibility for Mrs. M’s untimely demise, but Ms. J’s failure to question Mrs. M more thoroughly about her symptoms played a role too.

Protecting yourself

As a clinician, it’s not unusual for you to get calls in the middle of the night. But when you’ve been roused from a sound sleep, will you be able to give the best advice in an emergency?

No one knows what would have happened had Ms. J asked a few more questions—especially once she discovered Mrs. M was using a fentanyl patch. 

But Ms. J’s advice indicated she correctly suspected a fentanyl reaction. Given that Mrs. M felt “queasy and faint” and that she sounded weak, Ms. J should have been more aggressive. If she could not get strong, responsive answers from the patient, she should have spoken to the husband, who would have been able to relate whether his wife was having difficulty breathing or appeared to be in shock.

Had the answers been negative, Ms. J likely would not have ended up in court, even though Mrs. M died. The tragedy might even have been averted had Ms. J told Mrs. M to remove the patch immediately and seek emergency help.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.