A woman who lost one of her eyes after eye surgery got a new trial after her case went before the Iowa Court of Appeals. After a trial in Whitley v. C.R. Pharmacy Service, Inc., a jury originally returned a verdict in favor of the defendant pharmacy. The plaintiff appealed, arguing that the trial court erred in allowing the pharmacy to introduce never-before disclosed evidence at trial. The appeals court agreed that this prejudiced the plaintiff, and granted the new trial.
Whitley was a member of the Iowa Army National Guard who needed to improve her eyesight in order to apply for an officer commission in the armed forces. An ophthalmologist, Dr. Lee Birchansky, performed Epi-LASIK on both of her eyes in November 2005. Whitley later developed corneal scarring, a known side effect of the procedure. At Birchansky’s recommendation, she underwent a procedure called corneal scraping on March 9, 2006. A medication called mitomycin is used during this procedure. Birchansky’s office ordered a 0.02% mitomycin solution from C.R. Pharmacy.
Whitley reported a stinging sensation when Birchansky applied the mitomycin, which continued long after the procedure. After several weeks, she could only see colors and shapes, and she had persistent headaches. Birchansky referred her to a glaucoma specialist, who suspected Whitley had received the wrong concentration of Mitomycin. Birchansky sent the remaining mitomycin, which he found in a container with a C.R. Pharmacy label dated March 9, for testing at the University of Iowa. The tests revealed that the solution contained no mitomycin. Whitley’s condition deteriorated further. She underwent corneal transplant surgery in both eyes, but still lost her left eye.
Whitley sued C.R. Pharmacy, alleging that it negligently supplied the wrong medication. Pharmacy records showed that it compounded the mitomycin at 9:25 a.m. on March 9, and that its delivery person clocked in at 10:16 a.m. His delivery log for the day showed a delivery to Birchansky’s clinic, with Birchansky’s receptionist’s signature. Whitley’s procedure began around noon that day and ended around 1:20 p.m.
The court entered a scheduling order, setting July 10, 2009 as the close of discovery. All trial exhibits had to be exchanged before the final pretrial conference on February 12, 2010. After trial began on March 1, the pharmacy manager offered testimony that Birchansky’s office manager picked up the mitomycin from the pharmacy the afternoon of March 9, 2006, after Whitley’s procedure was complete. The trial judge admitted two exhibits, NN and OO, showing a pharmacy pickup log with the office manager’s signature. The pharmacy manager offered speculative testimony, which the court allowed, that Birchansky’s staff used the wrong medication entirely during Whitley’s procedure, and that someone in Birchansky’s office switched the label on the mitomycin once the error was discovered.
The jury returned a verdict for the pharmacy, and the judge denied Whitley’s motion for new trial. The court of appeals, however, agreed with Whitley that the trial court erred by admitting exhibits NN and OO, calling the pharmacy’s failure to disclose them “deliberate and unapologetic.” It remanded the case for a new trial with all the available evidence.
The Maryland attorneys at Lebowitz & Mzhen can assist victims of medication errors, who have been injured by drugs prescribed, dispensed, or administered incorrectly. Contact us today online or at (800) 654-1949 for a free and confidential consultation to discuss your case.
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