Today's New York Post reports a tragic story involving a St. John's University College student who was killed when he came into contact with a powerful anesthetic medication while doing an externship program through the school.
He was only 22 years old.
He began working at a compounding pharmacy last year as part of an externship in order to obtain his doctorate in pharmacology. Only four days into this program, he apparently came into contact with a drug known as fentanyl. This is a highly potent anesthetic that apparently can be fatal with as little as 2 mg of this medication.
You may have heard of fentanyl patches being used in cancer patients to alleviate their excruciating pain.
The family has brought a wrongful death suit against St. John's University and also the compounding pharmacy for a number of different claims including negligence, negligent training and negligent supervision. One of the claims includes the school not performing a proper background check on this particular compounding company.
A compounding pharmacy is different than going to CVS for your medication or getting your medications from a known pharmaceutical company. Compounding pharmacies make drugs from scratch. It gives them the benefit of making medications specifically for patients with special needs when they cannot get them directly from known pharmaceutical companies.
In order to obtain this modified medication, patients always needs to have a prescription from a physician.
How did he die?
According to the article, while putting together some medication, his skin came into contact with the fentanyl. He apparently collapsed at his workplace and died almost a week later.
The family is suing the college...
What does the family need to show in order to be successful with their case?
In a wrongful death lawsuit in New York, the family will need to show...
- That they are more likely right than wrong that the school was careless in investigating the company where students were sent to perform an externship. If it turns out the company has a history of problems, [and according to the New York Post article there were some problems in its past], then the school had an obligation to perform its own due diligence before agreeing to send its students to this company to gain real-life work experience prior to getting a degree.
- If the family can show that they are more likely right than wrong that St. John's University failed to do their due diligence to investigate the companies they were sending their students to, a jury might find that they were careless. If the jury ultimately determines that the college was negligent or careless in carrying out this basic obligation to protect its students, then the next question they must answer is...
- Whether that carelessness was a cause of this young man's injuries and untimely death.
In legal terms, the family has to show liability, causation and damages. Liability simply means who was responsible for what happened. Causation is the connection between the carelessness and the injury. Damages are the harms and losses this young man and his family suffered as a result of carelessness.
A claim against the compounding company...
In addition to the claim against the college, the family also will be bringing a claim against the compounding pharmacy for lack of supervision and negligent training. Again, they need to be able to show to a jury that:
- They are more likely right than wrong (legally this is known as a preponderance of evidence) that the compounding company failed to do what a reasonable employer in their position should have done,
- That the family needs to show that important connection, that link, between the compounding company's carelessness and the injuries and untimely death this man suffered.
According to the New York Post article, it indicates that this particular company had been stripped of their license earlier this year. Will that fact affect how this case proceeds? The answer is most likely “Yes,” and here's why...
When you have a company that provides products or services that is regulated by a state or government agency, they must follow certain rules and protocol. If your license to continue providing those products or services has been revoked, the question then becomes how they were allowed to continue to create products and services for the general public after their license was revoked.
In addition, a question arises as to how they were allowed to continue having student employees work on their products if their license had been revoked. That will likely be an extremely challenging issue for the defense attorney to have to deal with throughout the litigation and certainly at trial.
Another issue that will confront the family when bringing this wrongful death lawsuit is the issue of damages.
In any wrongful death suit in New York, we always look to see whether the person who died was gainfully employed. We look to see how much they were earning at that time and what their earning potential would have been. We look to see what their educational level was at the time of death together with what their family's educational level was as well.
What are economic damages?
We can often make the argument that someone who is in college working towards a doctorate degree would have gone on, had this tragic event not happened, to be a productive member of society and earn significant money over the course of their lifetime.
As a result of his untimely death, he and his family will now have been deprived of those lost earnings and those lost potential earnings. This discussion about money is known as economic damages. We can often quantify and project out how much he was earning and how much he would have continued to earn over the course of his expected lifetime.
In addition, it is highly likely that the family will bring in an expert who is knowledgable about economics. This type of expert is familiar with the value of money and how it changes over the course of time. This economic expert is often brought in to trial to help a jury understand how the value of money changes from year to year. In other words, a dollar today is worth less in 10 years than it is today. In 20 years it would be worth even less.
What are non-economic damages?
In addition to the economic losses that the family will need to explain to the jury, there's another component of damages that the jury will need to evaluate. That includes the suffering that this young man experienced from the time he became exposed to this toxic medication for the six days prior to his death. In legal terms that is known as evaluating someone's pain and suffering.
I will share with you that that phrase has been overused repeatedly. It has been overused so much that when jurors hear it, its meaning is not as significant as it used to be. Instead, really smart trial attorneys will explain to the jury about all the harms and actual losses that this young man experienced as a result of someone else's carelessness.
In addition to his own suffering, the family will be allowed to talk about the loss that they have suffered as a result of their son's untimely death. The parents will likely submit their own claim for all the types of services that their son used to provide to them even though he was technically an adult.
3 Typical Defenses in this type of wrongful death case...
In practically every type of wrongful death lawsuit, defense attorneys will typically raise these three defenses:
- We didn't do it and we had nothing to do with it.
- Well, maybe we did have something to do with it, but you, the injured victim are also at fault.
- Well, now that we think about it, we really were responsible but the damages you are seeking are clearly not accurate and this case is worth much less than you claim it to be.
Basically, these three defenses establish what the defense attorneys will usually argue in these wrongful death cases.
They first deny that they had anything to do whatsoever with causing or contributing to any carelessness and that nothing they did caused or contributed to this man's early death.
As the case progresses and more information becomes available, defense attorneys may change their tune and come to the realization that that original defense simply won't work. Instead, they may opt for the second defense which is “Yes, we may have been somewhat negligent, but hey, this young man also was careless as well.” In some cases, that may actually be true.
If the case goes to a jury verdict, the jury will ultimately have to determine whether the injured victim caused or contributed to his own injuries. If they find that he did, the jury will then have to apportion a percentage of responsibility to the injured victim as well as to the school and also the compounding company.
If those two defenses simply are not working, as a last ditch effort, one strategy might be to simply acknowledge that they are responsible that their clients' carelessness caused harm but now try and minimize the amount of damages that the injured victim and his family are entitled to receive.
THIS IS NOT A LOTTERY!
I will also share with you that many good defense attorneys try and portray an injured victim or their surviving family has somehow being part of a lottery system and that is the primary reason why they are bringing a lawsuit.
After practicing law for more than 25 years, I can tell you this type of argument infuriates me.
It's infuriating because injured victims don't want to be in the position of having to bring a lawsuit. If you ask any injured victim whether they would rather have their life returned to normal or whether they would prefer to have money and suffer the indignity and disability of lifelong injuries, I will tell you that every single one of my clients would tell me that they would rather have their life returned to normal.
Nobody that I know wants to be in a position of having to bring a lawsuit. It's devastating. It's humiliating. It's inconvenient. It's lengthy. It can be depressing. It's endless. It drags on for a long time.
Injured victims who bring a lawsuit and are ultimately successful, don't wind up celebrating if they are successful. For them, they want their health back. The surviving family wants their loved one back. They would do anything in the world not to have to go through this process.
The unfortunate reality is that we can never bring this person back.
We can never make someone whole again physically. That's the doctor's job.
Well, if we cannot make someone physically whole again how then can we compensate them for the harms and injuries they suffered because of someone else's carelessness?
Our system of justice allows every injured victim the opportunity to bring a lawsuit seeking compensation for those harms and losses they suffered because of someone else's carelessness. When the surviving family chooses to bring a lawsuit seeking compensation, you should know that the school and the compounding company are likely not voluntarily knocking on their door offering to fully compensate the family for their son's untimely death. It is the very rare case where the facts and carelessness are so clear-cut that a company would actually do that.
All most every wrongful death case of this nature is hotly contested. The defense contests liability, causation and damages every step of the way.
When a defense attorney makes closing arguments and says to the jury “Ladies and gentlemen, the surviving family here thinks this lawsuit is a lottery. This is not a lottery..."
Let me share something else with you.
If the surviving family is successful in obtaining money for their child's death, I will tell you that the money is not “an award.” There's nothing award-winning about obtaining any amount of money for the death of one of your family members.
This type of logic his highly offensive and is clearly designed with one thing in mind. That's to get the jury thinking that the family is money hungry and looking to strike it big by rolling the dice and hoping they will win a huge amount of money.
Nothing is further from the truth.
Bringing a lawsuit is not a lottery. Ever.
Compensation that a jury decides to give to his surviving family or an injured victim is not an award. Newspapers claim it is. TV news reports on jury 'awards'. The reality is that a jury verdict is simply a family's vindication that they are holding the responsible people accountable for the losses the victim experienced.
Time to consider how much to compensate the family...
Did you know that if a jury determines that the surviving family is more likely right than wrong that the school and the compounding company were careless and that that carelessness caused and contributed to this man's death, then the jury is obligated to compensate the family for the losses that occurred because of his death.
This is not optional.
The jury has a legal obligation at that point to now look at the damages that were incurred. The wrongdoer now has to account for each element of damages separately. The jury does not look collectively one big number.
Instead, the family's trial attorney will point out to the jury that they are to consider each element of damages individually and not to add them up and determine whether or not this adds up to a big number or not. Instead, they are look at the economic losses. They also look at the suffering this man endured during the six days he remained alive before his untimely death. They look at other elements of damages; both economic and noneconomic. Then, at the very end of their deliberations, they hand their verdict sheet to the judge.
These untimely deaths are often preventable...
After representing many surviving families over the course of 25 years in wrongful death cases, many of these tragedies are often preventable. When you look at the facts leading up to the injuries and a victims' untimely death, simple little mistakes, failure to follow protocol, failure follow guidelines, failure to follow good basic medical care, are just some reasons why a person experienced injury and death.
Compensating the family is not just a legal requirement when they can show that they are entitled to it, but it's also a moral requirement to try and make the family whole again with the only way our system of justice permits it. That's with full and fair compensation.