Meningitis outbreak: Clinic didn’t ‘sell’ tainted medicine, lawyers say

Citing multiple court decisions in Tennessee and more than 20 other states, lawyers for the outpatient center where patients were injected with a fungus-tainted steroid have asked that one of the major claims against the facility be dismissed.

The motion filed Friday in Circuit Court in Nashville seeks dismissal of product liability claims against the Saint Thomas Outpatient Neurosurgical Center. The motion does not address other claims under the state’s health care liability law and negligence statutes.

The 49-page brief was filed in the case of Wayne Reed, whose wife Diana died after being injected with the steroid, methylprednisolone acetate, at the neurosurgical center last year.

Filed by the neurosurgical center’s attorney, C.J. Gideon, the motion argues that health care providers cannot be held liable for defects in the products used in the treatment of patients.

“Like a carpenter and wood or a general contractor and a pump, a health care provider is not a seller of the medication that is consumed incidental to the services of medical diagnosis and treatment,” the brief states.

Lawyers for Reed have argued that under the state product liability law, health care providers can be held liable in cases where the company that provided the defective product has been declared bankrupt. The company that provided the spinal steroid has filed for bankruptcy in federal court in Massachusetts.

The neurosurgical center’s attorneys, however, argued that by precedent, health care providers do not meet the definition of “sellers” under the law.

“Tennessee courts have concluded that providers of professional services are not seller of the tangible products consumed during the provision of professional services,” the brief states, adding that similar rulings have come in 22 other states and the District of Columbia.

Cited specifically was a case in which a set of bleachers broke and the victims sued the carpenter for providing defective wood. The court concluded the carpenters “were not engaged in the business of selling.”

“Mrs. Reed did not go to (the clinic) seeking to purchase methylprednisolone acetate,” the motion states, adding that she went to seek treatment for “unresolved neck pain.”

Reed’s case and three similar suits are now before Presiding Judge Joe C. Binkley Jr. Key depositions in the case had been scheduled for this week but were postponed due to a dispute over records requested by Reed’s lawyers.

A hearing on a motion to force the release of those records is now scheduled for June 21.

The four cases before Binkley are all the result of the fungal meningitis outbreak that has taken 58 lives nationally, 15 of them in Tennessee.

Source: http://www.tennessean.com/article/20130607/NEWS07/306070117/Meningitis-outbreak-Clinic-didn-t-sell-tainted-medicine-lawyers-say