When Treatment Poses a Danger

After reviewing all the medical records, the defense attorney met with the physician and hospital administrators. The attorney explained that considering the patient was suffering from so many chronic conditions the best defense would be to argue that it wasn’t the treatment that caused him to die, but instead was his underlying conditions.

At trial, each side introduced its own experts to testify as to the probable cause of the patient’s death. The plaintiff’s experts argued that the Kayexalate was the cause of the patient’s ischemic colitis, that the patient had no abdominal pain, diarrhea, or bloody stools until the administration of the medication, and that although the patient was chronically ill, none of his other health conditions were imminently deadly. The plaintiff’s experts also testified that the doctor had breached the standard of care by not obtaining informed consent before administering the medication, and that dialysis would have been a better option than Kayexalate. The defense experts testified that the physician had acted within the standard of care and that he was not required to obtain informed consent before administering Kayexalate because there was a cardiac emergency. They testified that the medical literature does not support the premise that Kayexalate causes ischemic colitis, and to the extent it does, the risk is so small that it is not material.

The physician took the stand and testified that due to the patient’s cardiac event, he believed the most immediate treatment was needed, which is why he chose Kayexalate rather than dialysis. On cross examination he admitted that he was unaware of the rare risk of ischemic colitis from Kayexalate, but that even had he been aware he would still have ordered the drug because he thought it was the best course of treatment.

After multiple experts and family members testified, the jury deliberated before returning with a $10 million verdict for the plaintiffs. The jury found that the doctor had breached the standard of care by treating the patient with Kayexalate sorbital mixture and that this breach caused an injury to the patient which resulted in his death. The jury held that the doctor had a duty to obtain informed consent before treating him with the medication, and that a reasonably prudent person in his position would have withheld consent to that course of treatment had he been informed of the risks.

The Takeaway

Today’s powerful medicines can be both life-saving and life-threatening, as we see in this case. Ultimately, it must be the patients’ decision as to whether they want to take the risk in the case of a potentially dangerous medication.

The physician believed he was acting in an emergency situation, explaining his ordering of the treatment without discussing it, or the potential dangers, with the patient. However, as the experts pointed out, other options were available, including continued dialysis.

When ordering a potentially dangerous treatment for a patient, be sure that the patient understands the benefits and risks and has made an educated decision. To do that, be sure that you have the latest information before making your treatment decisions.

Bottom Line — An uninformed patient cannot make an informed decision.

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times