Winter 2023

Abingdon Physician’s Negligence Superseded by Pharmacy’s Negligence In Wrongful Death Action

In August 2012, Brenda Rozek sought treatment for chronic neck and arm pain from Dr. Ritu T. Bhambhani, an Abingdon pain management physician. Dr. Bhambhani administered an epidural steroid (preservative-free methylprednisolone acetate (“MPA”)) injection on Rozek, which Dr. Bhambhani had sourced from the now disgraced New England Compounding Center (“NECC”). The steroid injected into Rozek was contaminated with fungus, and just 16 days after receiving the injection Rozed died from fungal meningitis.

Representatives of Brenda Rozek brought a wrongful death action in the Circuit Court for Harford County against Dr. Bhambhani individually, her private practice, and her surgery center, Box Hill Surgery Center, LLC. At trial, plaintiffs asserted the doctor was negligent at several points, starting with the ordering of the steroid from the NECC, a compounding pharmacy, to the moment Dr. Bhambhani injected the steroid into Rozek. Dr. Bhambhani argued that the pharmacy, which knew that its facilities were not following proper sterilization procedures, posed an intervening and superseding cause, and asked for the relevant jury instruction, which the court gave, over objection. A jury ultimately found that Dr. Bhambhani had breached the standard of care by purchasing the drug from a compound pharmacy, but that the pharmacy’s negligence was an intervening and superseding cause of Rozek’s illness and death, thus releasing Dr. Bhambhani from liability. The plaintiffs appealed.

In Meghan Handy et al. v. Box Hill Surgery Center LLC et al., No. 973, Sept. Term 2021, appellants raised one question for review: Whether the trial court erred in giving the intervening and superseding cause jury instruction and including the question on the verdict sheet. Appellants argued that the trial court erred in giving the intervening and superseding cause instruction because an intervening cause must occur after the defendant’s conduct, and appellees offered no evidence at trial that there was any conduct by NECC between the time that Dr. Bhambhani injected Rozek with the contaminated MPA and her death. Second, the appellants argued that NECC’s conduct was not a superseding cause of Rozek’s illness and death because Dr. Bhambhani breached the standard of care by using a drug sourced from a compounding pharmacy. According to the appellants, it was entirely foreseeable that ordering medicine from a compounding pharmacy would result in receiving a contaminated product.

The appellees, on the other hand, argued that the trial court was within its discretion to instruct the jury on intervening and superseding cause because the appellants’ expert testified to several potential breaches of the standard of care that occurred before NECC’s negligent conduct (i.e., Dr. Bhambhani was negligent for purchasing MPA from NECC before NECC shipped her the contaminated batch). According to the appellants, because the jury found that Dr. Bhambhani provided informed consent to Rozek regarding the risks of the compounded drug, any such conduct by Dr. Bhambhani after NECC’s negligent conduct is negated. Additionally, the appellees maintained that at trial, they presented evidence that NECC “negligently failed to terminally sterilize the MPA Dr. Bhambhani ordered on August 13, 2012, after NECC transferred the MPA to the vials and before distributing them to Dr. Bhambhani.”

The Maryland Court of Special Appeals held there was sufficient evidence of an intervening and superseding cause to justify the trial court giving the pattern jury instruction and upheld the Harford County Circuit Court jury’s verdict that found Dr. Bhambhani negligent, but that the pharmacy’s negligence was superseding, and thus releasing Dr. Bhambhani from liability. The Court of Special Appeals found that the plaintiffs’ experts at trial had presented several theories of Dr. Bhambhani’s breach, and the jury could have reasonably found an intervening and superseding cause applied to one of the earlier alleged breaches. Additionally, the defendants’ experts at trial testified that NECC had breached “standards of pharmaceutical practice in making and distributing the MPA at issue[,]” and that such a breach was extraordinary and unforeseeable. Therefore, the Court of Special Appeals found sufficient evidence that would allow a jury to rationally conclude that NECC’s conduct was an intervening and superseding cause thus generating the issue warranting a jury instruction. Consequently, Dr. Bhambhani escaped liability for her own negligence due to the negligence of NECC.

The NECC was responsible for the meningitis outbreak that began in September 2012 and ultimately infected nearly 800 individuals and resulted in more than 100 deaths. In October 2012, an investigation of the NECC revealed the company had been in violation of its state license because it had been functioning as a drug manufacturer, producing drugs for broad use rather than filling individual prescriptions. In December 2012, federal prosecutors charged 14 former NECC employees with a host of criminal offenses. In May 2015, a $200 million settlement against the former owners of the NECC that set aside funds for victims of the outbreak and their families. The outbreak was the largest public health crisis ever caused by a contaminated pharmaceutical drug.

For more information, contact Stephen J. Marshall.