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It is always good when you can relate real life examples to current proposed legislation. Today, the Birmingham News reported a tragic incident involving approximately six hospitals and a Birmingham Pharmacy, Meds IV.

According to the article, nineteen (19) patients in six hospitals were infected by a deadly bateria (Serratia marcescens)

after receiving intravenous nutritional supplements. These patients received Total Parenteral Nutrition "TPN" because they typically cannot eat through a feeding tube. For more information on TPN, you may visit Wikipedia here. As a result, the hospitals and pharmacy contacted the Federal Food and Drug Administration (FDA), the Centers for Disease Control (CDC), and the Alabama Department of Public Health.

So, Alabama law states that any action against a Medical Provider, which includes pharmacies, must be brought under the Alabama Medical Liability Act:

Section 6-5-540

Legislative intent.

It is hereby declared by the Legislature of the State of Alabama that a crisis threatens the delivery of medical services to the people of Alabama and the health and safety of the citizens of this state are in jeopardy. In accordance with the previous declaration of Legislature contained in Act 513 of the Regular Session of the 1975 Alabama Legislature it is the declared intent of this Legislature to insure that quality medical services continue to be available at reasonable costs to the citizens of the State of Alabama. This Legislature finds and declares that the increasing threat of legal actions for alleged medical injury causes and contributes to an increase in health care costs and places a heavy burden upon those who can least afford such increases, and that the threat of such actions contributes to expensive medical procedures to be performed by physicians and other health care providers which otherwise would not be considered necessary, and that the spiraling costs and decreasing availability of essential medical services caused by the threat of such litigation constitutes a danger to the health and safety of the citizens of this state, and that this article should be given effect immediately to help control the spiraling cost of health care and to insure its continued availability. Additionally, the Legislature finds that the increasing threat of legal actions for alleged medical injury has resulted in a limitation on the number of physicians providing specialized health care in this state. Because of the limited number of insurers offering professional liability coverage and because of the prejudice to the rights of the defendant health care provider through the interjection of evidence of insurance, the Legislature finds that the interest of all citizens will best be served by prohibiting the introduction of evidence that a witness testifying at trial is insured by the same insurer as the defendant health care provider.

(Acts 1987, No. 87-189, p. 261, §1.)

So, this falls under the medical malpractice umbrella (and potentially a products liability claim). As a result, these are the types of cases which would warrant caps on noneconomic damages according to many in the Federal legislature and the medical community. $250,000.00 is the amount of caps encouraged on these types of claims.

What would this mean to the families of these individuals who received this infection? a maximum of $250,000.00. In Alabama, you cannot recover compensatory damages (i.e.: loss of income, loss of love and support, pain and suffering) for wrongful death. You may only recover punitive damages (damages to punish the wrongdoer). If this were your family member killed, would $250,000.00 compensate you for your mother or father or spouse?

In addition, you can see how the potential defendants are going to defend the case. Here are two quotes from the article:

Don Williamson, the State Health Officer, "stressed that it is impossible to know whether the nine deaths reported were caused by the bacteria or by the underlying health problems."

He was also quoted as saying, "Very quickly you got the shutoff of the production of the product, the cessation of use of the product and the investigation done."

They will argue the deaths are not the result of the infection, and they will argue that they did what they could to insure that this doesn’t happen, and it was cleaned up as soon as it was discovered. This was simply and accident and no intended result. We are VERY sorry, but sometimes life is like that. Accidents do happen.

What consolation is this for the families of these individuals? Shouldn’t this call into question caps on damages in these cases? Shouldn’t it call into question Alabama’s wrongful death statute which does not allow for compensatory damages? We need to question these things when events like this happen, and we need to make sure that we do not enact some law we might regret later.

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