Fordham Law


Amputee awaits high court, wants musical glow back

Ben Zipursky in The Associated Press, October 31, 2008

Media Source

ASSOCIATED PRESS


MARSHFIELD, Vt. – When Diana Levine turned 63 recently, her daughter made her a birthday card, drawing on Greek mythology with an illustration of Diana the Huntress, her bow string drawn taut, an arrow ready to fly.

But the arm pulling at the bowstring was amputated below the elbow – just like Diana Levine's – and the target was labeled the “Wyeth monster.”

That's Wyeth as in Wyeth Pharmaceuticals, the company Levine blames for a botched injection of the Wyeth-made drug Phenergan that led doctors to amputate her right arm in 2000.

Levine, once a professional guitar player and pianist, now plays with one hand and a prosthetic arm. “It's about getting my glow back,” she said recently as she awaited a hearing today before the U.S. Supreme Court, where Wyeth is appealing a $6.7 million verdict in her favor.

The outcome of Levine's case could have major ramifications for drug makers and consumers. The court is expected to decide whether people can sue under state law – or are pre-empted from doing so – for harm caused by a drug approved by the federal Food and Drug Administration.

Levine said the drug makers “are using my case . . . to get through this doctrine that will say that if it is FDA-approved, then we are not accountable, because FDA said it's OK. . . . Mr. Pharmaceutical Company is not responsible and is not liable and doesn't have to help the person who just lost her arm, or her life.”

Levine, who suffered from migraine headaches, had a particularly bad episode in the spring of 2000. A friend drove her from her dirt road farmhouse-turned-music studio in Marshfield, Vt., to a clinic in neighboring Plainfield.

She was given drugs for the pain and, to combat nausea, an intramuscular injection of Phenergan, a drug that has been around for 50 years.

When Levine complained that she still felt nauseated, the clinic suggested an “IV-push” of Phenergan. This delivered a high volume of the drug very quickly to her right arm, not the slow flow that could have been delivered by an IV drip.

The second injection accidentally punctured an artery, prompting gangrene to set in. After several weeks of deterioration, her arm was amputated.

Levine recalls first seeing what remained of her arm after surgery. “I was horrified and shocked and about as sad as I ever have been in my life,” she said.

Levine reached an out-of-court settlement with the clinic and sued Wyeth, contending that the label on the Phenergan she was given should have more clearly warned about the danger of giving the drug IV-push.

Combatting an upset stomach with a method that can end up causing limb loss is “an unfathomable benefit-risk ratio,” Levine said. With two other methods for injecting Phenergan, “there's no earthly reason for this third option (IV-push) to even be made available,” she said.

Wyeth and the FDA say that when a drug like Phenergan has a federally approved label, its manufacturer is immune from lawsuits in state court. Wyeth maintains its label clearly describes the risks of Phenergan, and that it was not only approved but mandated by the FDA. “Wyeth could not change Phenergan's labeling to comply with Vermont law without violating federal law,” it said in court papers.

Consumer groups are mounting a vigorous campaign against that position, saying federal regulation should represent the floor, not the ceiling, of a drug company's responsibility.

“What a trial lawyer reasonably could fear in this case is that in one fell swoop, the U.S. Supreme Court would eliminate the right of an injured person to recover from a drug company in the case of a dangerous drug that caused their injury,” said Fordham University law professor Benjamin Zipursky, a product liability expert.

The court could effectively “eliminate all pharmaceutical company liability in this one case,” Zipursky said.

Bert Rein, a lawyer for Wyeth, said that concern was overblown. “Some of the hysteria being whipped up is really unjustified,” he said. “We believe the court will rule on the specific facts of the case,” rather than so broadly as to affect most liability claims.

That was not what Wyeth argued when urging the Supreme Court to take the case.

In its appeal to the court, Wyeth said the justices should act to prevent erroneous rulings in “tens of thousands of individual claims and potentially millions of class action claims” that are pending in state and federal courts.

While the legal war continues, Levine wages a more personal struggle. Sometimes it's just to roll her left sleeve up or down, file papers, wash dishes or mow the lawn.

“If you were to put your hand in your pocket for a day and not use it,” she said, “you would pretty much come to the conclusion that there's nothing that's a one-handed activity.”