By Walter F. Roche Jr.
Two Indiana courts have ruled that malpractice claims by victims of a deadly 2012 outbreak must first have their cases screened by a panel of doctors before they can pursue them in a courtroom.
The decisions in superior courts in Elkhart and Saint Joseph County mean that more than 100 cases will need to be reviewed one by one by a panel of three physicians.
Calling it a "minor setback," Douglas Small, whose law firm represents some 80 victims, said the courts rejected, at least for the moment, the argument that two Indiana clinics engaged in negligence or malpractice as a matter of law.
The decision comes some seven years after the fungal meningitis outbreak surfaced. Indiana was one of some 20 states where victims were stricken with fungal meningitis caused by steroids contaminated with deadly fungi. There were 93 victims in Indiana, according to the latest available data.
Small wrote in an email response to questions that victims' attorneys had argued that the clinics, including ASC Surgical Ventures and Orthopedic and Sports Medicine Center, failed to comply with the mandated state and federal procedures for use of prescription drugs when they purchased and dispensed the tainted steroids.
For instance, he said, they failed to comply with "the requirement that an individual prescription be issued for each patient for each drug obtained from a pharmacy."
That failure, he added, assisted the New England Compounding Center, which produced the drugs, to sell drugs in bulk, but still avoid stricter federal regulations.
He said each case will now be brought before a three physician panel to determine whether the clinics deviated from the standard of care.
Following that, the cases will then be brought back to court where Small said he will once again argue that the clinics were guilty of negligence as a matter of law.
Contact: wfrochejr999@gmail.com
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