Lawyers: Hepatitis C outbreak doesn't happen if drug makers sell smaller anesthetic vials

Michael Washington never would have been infected with hepatitis C if drug makers had refused to sell large vials of a popular anesthetic to Dr. Dipak Desai's clinics, Washington's lawyer argued Monday during opening statements in the third civil trial stemming from Las Vegas' hepatitis C outbreak.

Teva Parenteral Medicine Inc. and Baxter Healthcare Services knew that doctors and nurses around the world double-dipped with the 50-milliliter vials of propofol but did nothing to remove the cost-cutting temptation by refusing to sell the larger vials to outpatient clinics, lawyer Rick Friedman told the jury.

"They knew of the dangers, ... and there were people in the company who were concerned about those dangers," he said.

Washington, 71, and his wife, Josephine, sued the drug companies under state product liability law, alleging they should have known that the 50-milliliter vials would be misused in endoscopy clinics, where typical procedures require less than 20 milliliters of the popular anesthetic.

Washington's case hinges on the same issues that led to a record-setting $500 million verdict against the drug companies last year. But the Washington trial, and another one that started last month, differ from the 2010 trial in that, after a state Supreme Court ruling, the drug companies can give alternative theories of infection and use the "dirty doctor" defense to lay blame on the medical professionals misusing their drug.

Local health officials said the hepatitis outbreak was caused by nurse anesthetists who were reusing propofol vials among patients after they had become contaminated by syringes that were reused on patients infected with hepatitis C.

Authorities have charged Desai and two nurse anesthetists with multiple felonies stemming from the outbreak.

During Monday's hearing, drug company lawyers told jurors that the people responsible for Washington's infection were Desai and his staff.

Baxter lawyer Jennifer Levy called Desai's practices "reckless" and compared them to driving on the wrong side of the freeway.

"The wrong defendant is on trial," Levy said. "This isn't a case of a defective product. It's a case of medical misconduct."

Washington's lawyer argued that the misuse in Desai's clinics was happening in clinics around the world because they were sold the 50-milliliter vials and had a financial incentive to use the vials among patients though they were labeled "single patient use only."

"If you multidose, you can get every last drop," Friedman said.

Multidosing of propofol was linked to 23 infectious disease outbreaks across the globe in recent decades, he said.

"Over and over again, doctors and nurses made mistakes that could have been prevented if only they sold 10- and 20-milliliter vials," Friedman said of the drug companies.

The manufacturer had a financial incentive to sell the larger vials because they made more profit per bottle than the smaller vials, he said.

Teva lawyer Glenn Kerner also laid the blame on Desai, who he said had "grossly misused" the propofol contrary to warning labels, medical training and common sense.

"What went wrong begins and ends with Dr. Desai and his clinics," Kerner said.

Teva and Baxter never emphasized one size vial over another, but doctors preferred having the 20- and 50-milliliter vials, so Teva stopped making the 10-milliliter vials, Kerner said.

Teva gave medical professionals the choice to use whatever size they deemed appropriate for their patients in their clinics, the lawyer said. Any vial size is unsafe if it's misused, he said.

"There's no question if Dr. Desai had followed instructions and common sense, there was no chance of infection," Kerner said.

He also noted hygiene problems at the clinics, including nurse anesthetists who didn't wear gloves and improper cleaning of endoscopes between procedures, that were "so bad, so disgusting and so dangerous to the community of Las Vegas," Kerner said.

He said the unclean endoscopes could have been a possible mode of infection.

But no matter whether jurors believe the hepatitis C virus had infected Washington through a tainted syringe or an unclean scope, Desai was responsible, Kerner said.

"This situation was entirely unavoidable if Dr. Desai and his clinic had done their job," he said.

Contact reporter Brian Haynes at bhaynes@ reviewjournal.com or 702-383-0281.

Trending topics:

• Brian Haynes
• Las Vegas
• hepatitis C
• Michael Washington
• Dr. Dipak Desai
• Teva Parenteral Medicine Inc.
• Baxter Healthcare Services

Comments

Note: Comments made by reporters and editors of the Las Vegas Review-Journal are presented with a yellow background.

1. beentheredonethat Sep. 18, 2011 | 6:18 p.m. Report Abuse

   My opinions are opinions and the facts that I cite are the facts. The inability of those who read my comments to discern which are which is beyond my control. But the law is the law, and the law says what I said it says, and when the decision comes back, IF it is in accordance with the law, Teva will be found liable; is that clear? And if not, then further education may be necessary.

2. The Truth Detector Sep. 17, 2011 | 9:18 p.m. Report Abuse

   My opinions/non opinions are not fact/non fact but are indeed (perhaps?) fact/non fact because that is my opinion/non opinion.
   
   I am going to have to try that/not try that sometime (or not). At work/not at work. Perhaps they will/will not keep me employed/unemployed?
   
   Only in the world of tort lawyers... but they can always count on the ignorant. Someone is guilty, and someone needs to pay... guilty (or not)
   
   ???

3. beentheredonethat Sep. 16, 2011 | 4:24 p.m. Report Abuse

   nickdarnit: If I call something a fact, and it is not, then it must be opinion yes? So, whether I stated, emphatically, that Teva WILL be found liable at some point in the future, and labeled that as a fact, doesn't change that it is an opinion, and further it doesn't suggest that I believe it is anything other than an opinion. What it means is that I believe (opinion) that it will happen in fact.

4. nickdarnit Sep. 15, 2011 | 8:48 p.m. Report Abuse

   "Teva WILL be found liable under the law... and no amount of "its the lawyers" or "its the jury" or "its someone else's fault" is going to change that FACT..." what part of that did i misunderstand? i just called your attention to it because you do it often in other contexts. you have a way with both words and circular reasoning. when you're called on something you resort to one or the other... to quote forrest gump..."that's all i have to say about that..."

5. beentheredonethat Sep. 15, 2011 | 2:18 p.m. Report Abuse

   nickdarnit: The only opinion I expressed was about the eventual outcome of the case. I didn't get any "enjoyment" out of posting that, and you seem to be unable to distinguish opinion from fact which is apparent because I never said that my opinion about the final result was a fact. If you "understood" my opinion as a fact, I suppose it says more about your ability to understand than anything else. The use of the word "will" should have tipped you off that this was an expression of my opinion since obviously the event will happen in the future, if at all. Is that clear?

6. nickdarnit Sep. 15, 2011 | 10:13 a.m. Report Abuse

   btdt, you seem to enjoy citing opinion as fact...

7. beentheredonethat Sep. 15, 2011 | 7:51 a.m. Report Abuse

   The Truth Detector: The law is the law. The law says that businesses are responsible to those who they injure and the law also says that they are liable to those who misused a product so long as the manufacturer could reasonably foresee the misuse and failed to correct it. Teva will be found liable under the law and no amount of "its the lawyers" or "its the jury" or "its someone else's fault" is going to change that fact.

8. The Truth Detector Sep. 14, 2011 | 6:43 p.m. Report Abuse

   Patrick, is that you? The official LVRJ forum mouthpiece for tort lawyers?
   
   It is deep pockets, plain and simple. Desai is tapped out. He has no money (that anyone can find) His nurse anesthetists are tapped out. No money there. So who has money? BIG PHARMA!!! It doesn't matter that they didn't infect anyone. Some slick scheister lawyer is going to convince a jury of 12 idiots that Teva and Baxter should ONLY have sold small vials to Desai, because the "typical case" only takes 10cc (A JOKE). And knowing the intellect of the drooling fools that populate Las Vegas juries, he has a good chance of winning.

9. beentheredonethat Sep. 14, 2011 | 9:44 a.m. Report Abuse

   The law is clear and no about of "its the lawyers" or "its the judges" or "its spurious" is going to change it. The law says that if Teva knew, or should have known, that the misuse in this case was foreseeable, and failed to act reasonably to prevent that misuse, it is liable for the consequences of the misuse. As I said before, clearly Teva knew that the larger bottles were being misused in the way they were here, and they were aware of the potential consequences. They failed to act "reasonably" because the fix was simple and inexpensive; make smaller bottles. There were significant damages, and therefore Teva WILL be held, appropriately, responsible. Don't be surprised when it happens, and please don't whine about poor old Teva; the law in this area has been around for a VERY long time and Teva simply made a business decision for which they will not be paying the "cost".

10. david.henry Sep. 14, 2011 | 7:25 a.m. Report Abuse

    That's BS. It is dirty needles. Multi-use containers have been used for decades. (Still are.) You use clean units to puncture the vial. That's all. Lawyers...that is all this is....Lawyers.

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