As a defective drug attorney who also handles medical malpractice cases, I know the two frequently go hand in hand. After all, medical malpractice is nothing more than the legal name for very bad judgment by a medical professional, and knowingly administering a defective drug is very bad judgment. So I was interested to see the Second U.S. Circuit Court of Appeal’s ruling in Brown v. Noxubee General Hospital et al., a case that combines defective drug claims against drug maker Eli Lilly with medical malpractice claims against two hospitals in Mississippi. The claim was brought by Derrick Brown as personal representative of the estate of Dorothy Brown. He alleges Dorothy Brown died because of her use of Zyprexa (olanzapine), an atypical antipsychotic prescribed for her schizophrenia and depression with psychotic features. She also had diabetes, which Zyprexa is known to cause or worsen.
Brown was prescribed Zyprexa when she was under psychiatric care, ending in 2003. In 2005, Brown came to the emergency room at Noxubee General Hospital in Macon, Miss., with trouble breathing and high blood glucose. She was discharged the same day, but showed up the next day at Baptist Memorial Hospital in Flowood, Miss. She was discharged from Baptist the same day, but went back to Noxubee the following day, where she was again discharged. She died at home of cardiac arrest two days after the last discharge. Her estate sued two years later, alleging that Lilly failed to warn patients about the metabolic risks of Zyprexa. It also alleged that the hospitals knew or should have known Brown was unable to care for herself. After some jurisdictional squabbling, the case was ultimately removed to the Eastern District of New York, where other Zyprexa litigation was pending. That court granted summary judgment to Noxubee and eventually Baptist, saying Brown had failed to follow special Mississippi medical malpractice procedures and also, in Noxubee’s case, missed a one-year statute of limitations. It asked Brown to submit an expert witness report connecting Zyprexa with the death, but when Brown missed that deadline, it dismissed the claim against Lilly as well.
Brown appealed the dismissal of all three defendants. The Second Circuit started by noting that the appeal as to Baptist was already decided, and declined to address the issue again. The first appeal was in any case drawn partly from a non-appealable order, the court noted, and the other part was filed past a deadline. That order also dismissed the appeal as to Noxubee, because Noxubee was in the title but had no part of the orders being appealed. A separate appeal as to Noxubee was withdrawn, apparently because Brown’s attorneys believed it was too defective to survive, but this was not the case. Thus, the Second had no jurisdiction over that issue. It also dismissed Brown’s argument that federal jurisdiction was improper, since the Mississippi hospital defendants were dismissed and Lilly was from another state. Finally, it tackled the summary judgment order for Eli Lilly. Under Mississippi law, the Second said, plaintiffs in pharmaceutical liability cases must provide expert opinions connecting the drug to the death. Brown failed to do this, it noted, and even when the court threatened to dismiss the case if no report was filed, continued to not file one. Thus, dismissal was proper and the Second affirmed the lower court.
As a pharmaceutical liability lawyer, I am disappointed that Brown could not pursue his case for reasons that are mostly procedural. Though he seems to have genuinely missed deadlines and other requirements, none of this bears on the merit of the claim that Zyprexa led to Dorothy Brown’s death. Indeed, this case underscores the importance of ensuring that you get legal help as early as possible in your case, preferably as soon as you start considering a lawsuit. By contacting an experienced dangerous drug attorney right away, clients with claims against government entities, like Brown, can make sure not to miss the notoriously short deadlines for government claims. They are also more likely to understand the special procedures required in government claims and medical malpractice claims. Failing to follow these, as this case shows, can be deadly to the claim regardless of its merit.
Based in St. Louis, Carey, Danis & Lowe represents clients throughout the United States who have suffered a serious injury or death in the family because of a dangerous medication. If you’d like to tell us your story or learn more about how we can help, call us today at 1-877-678-3400 or send us a message online.
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