By Walter F. Roche Jr.
A key ruling in favor of a Nashville clinic issued this week is likely to benefit two other Tennessee clinics, where patients were injected with a fungus tainted steroid in 2012 triggering a nationwide fungal meningitis outbreak.
In a six-page ruling this week U.S. District Judge Rya W. Zobel granted a motion by the Saint Thomas Outpatient Neurosurgical Center to dismiss claims by outbreak victims under Tennessee's product liability law.
Though Zobel made clear her ruling applied solely to the Saint Thomas facility, the same reasoning is likely to apply to claims against two other Tennessee clinics, the Specialty Surgery Center in Crossville and the PCA Pain Center in Oak Ridge.
Meanwhile attorneys for victims of the 2012 fatal outbreak are considering whether or not to appeal Zobel's decision.
"We are considering the options," said Nashville attorney Mark Chalos.
Chris Tardio, one of the attorneys for the Saint Thomas clinic and the Oak Ridge and Crossville facilities, said the ruling was consistent with arguments they made in Zobel's Boston, Mass. courtroom.
He said the clinics agree with Zobel's conclusion that the claims of victims "must proceed under our Health Care Liability Act and actually show some wrongful conduct before an award of money."
Under that health care law the amounts that victims can claim will be sharply limited under caps spelled out in the statute. And, as Tardio noted, victims' lawyers will also have to prove actual fault, a higher standard than required under the product liability statute.
Victims' lawyers had argued that the product liability law should apply because the company that produced the tainted steroid was declared bankrupt.
Zobel, however, concluded that the health care liability law alone applied.
The judge noted in her ruling that 153 Tennessee patients were sickened in the outbreak and 16 of them died. Those numbers, however, are based on data collected by the U.S. Centers for Disease Control and Prevention, which stopped collecting data in October of 2013.
After the CDC stopped counting federal criminal investigators found an additional 25 patients sickened, 12 of whom died. Because they did not provide a state by state breakdown of the new cases, it is not known if some or any of them were in Tennessee.
Barring a successful appeal Zobel's latest decision means any awards will be sharply limited.
However, the decision does not affect awards from a separate but related bankruptcy case under which a $200 million trust fund has been amassed. That fund will be shared by victims and a limited number of creditors of the New England Compounding Center, the defunct drug compounding firm blamed for the fatal outbreak.