On March 4, 2009, the Supreme Court upheld a $6.7 million award to a woman whose arm had to be amputated due to complications she suffered after being injected with the popular anti-nausea drug, Phenergan. The woman was injected with the drug to combat nausea related to migraine headaches and subsequently lost her arm after gangrene set in. Although the drug was supposed to go into her vein, the needle accidentally struck an artery, which allowed a greater amount of the Phenergan to enter her body of a short period of time.
Prior to the injuries she suffered from the Phenegren complication, Levine was a professional guitarist and pianist. Once she contracted gangrene, doctors were forced to amputate her hand and forearm and her music career was ended.Read Full Supreme Court Opinion.
The importance of this decision cannot be stressed enough for the citizens of Georgia who have suffered personal injuries or death due to unsafe drugs. One of Governor Sonny Perdue’s stated top priorities was to insulate drug companies from Georgia State Court suits based on the theory argued by the drug company in the Wyeth v. Levine lawsuit, i.e., that since the FDA approved the drug, state court actions are preempted. Fortunately, the Supreme Court rejected this argument and it is not the law in Georgia. While it is not a complete defense to personal injury lawsuits, or in other words, a basis for summary judgment in Georgia, drug manufacturers and other defendants who have been sued for using an unreasonably dangerous drug do raise the defense to the jury. In these cases, the defendant’s argue that it is perfectly reasonable to use a drug since it has been approved by the FDA, and the doctor should not have to do any further investigation into the drug’s safety, other than to check to make sure it is approved by the FDA.
This simply is not the law in Georgia and it never should be. From my experience litigating injury cases in Georgia for the past 20 years, the proper standard is: did the doctor or dentist keep abreast of the field in which he is practicing. This standard would include keeping up with the drugs and medications being used and whether there is proof out in the field that a certain drug causes more injuries than safer alternatives. If this is the case, the standard of care requires that the safer drug be used. After all, it would not make any sense (even from a layman’s perspective, let alone an expert medical perspective) to subject the patient to an increased risk of injury if there was a safer alternative.
Robert J. Fleming has successfully represented many clients injured by unsafe drugs. We are elated that the United States Supreme Court has taken this issue on and decided in favor of injured people. Thankfully, your right to sue for these types of injuries has been preserved. If you have been seriously injured due to a drug that you suspect is unsafe, contact us today for a free initial consultation to discuss the specific facts of your case.