WCAX.COM Local Vermont News, Weather and Sports-U.S. Supreme Court to Hear Vt. Medical Liability Case

U.S. Supreme Court to Hear Vt. Medical Liability Case

Burlington, Vermont - February 24, 2008

The U.S. Supreme Court last week issued a ruling that limits the liability of the makers of medical devices against lawsuits from patients. Later this year, the nation's high court will consider another case that could expand the liability limit to drug makers -- and the case involves a Vermont woman.

Diana Levine of Marshfield lost an arm after taking a drug to combat nausea eight years ago. She first talked to us four years ago. Since then the Vermont Supreme court awarded her $6.8 million dollars in damages against Wyeth, the maker of the drug Phenergan. "The wait is part of the torture, I guess," Levine said. "Maybe that's part of the strategy, but it's been really very difficult."

She'll have to wait at least another year. The Supreme Court hears oral arguments in Wyeth's appeal of her judgement next October. Levine says she expects a ruling by January of next year.

The amputation of Levine's right arm cost her career as a professional musician. She says after suffering a recurring migraine in 2000 she was given the anti-nausea drug intravenously. But it caused gangrene when the drug, in the form of a shot, mistakenly entered an artery.  "There's several ways that are fine to give it," she said. "In fact, I've had it in other ways. You know, normally it's inter muscular, which is in the buttocks, and it works fine. No danger. But this, it turns out, is really dangerous."

The Supreme Court last week ruled in another case in which the makers of medical devices, such as defibrillators, are immune from liability as long as the devices are approved by the Food and Drug Administration. Some legal observers wonder if that's a hint of what the court would rule in Levine's case, possibly letting drug makers off the hook as well. The cases have set up a debate among legal experts on preemption, that is, whether federal regulations and federal courts take precedence over state jurisdictions.

Levine says it's not just the money she wants, although she has incurred expenses since she lost her lower arm. She wants to make sure that the drug maker is held accountable and that other patients are fully warned about the danger. "Vermont is well aware of it," she said. "But all across the nation? I really doubt it, you know. I really doubt that everybody knows. And it's happened four or five times since then. So that's an indication."

Diana Levine flew out of Burlington International Airport to New York City, where she was scheduled to appear on the CBS Early Show Monday morning. It won't affect her court case. But it will allow her to warn about the danger of ill-administered pharmaceuticals to a national audience.

Andy Potter - WCAX News