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A Half Pint, After All (Kovach v. Caligor Midwest)

By James M. Beck and Mark Herrmann

Last year, we published a post titled, "Is That A Half Point Or A Half Gallon?" criticizing an opinion out of the Indiana Court of Appeals. Last week, the Indiana Supreme Court came out our way.

In Kovach v. Caligor Midwest, No. 49A04-0707-CV-406, slip op. (Ind. Sept. 8, 2009) (link here), a physician prescribed 15 mL of acetaminophen -- or half of a 30 mL plastic cup -- for pain relief, but the nurse gave the patient 30 mL -- or a whole cup -- instead. This resulted in the patient's death by an opiate overdose. The patient's family sued -- who else? -- the manufacturer of the plastic cup, saying that the cup was not suitable for precision measurements. The trial court granted summary judgment in the cup manufacturer's favor, the Court of Appeals reversed, and we howled.

This is a tragic situation, but it's not the cup manufacturer's fault. If the nurse gave a patient 9 mL instead of the prescribed 8 mL of a drug, one can imagine a situation where the markings on the side of the cup could be at fault. But no one mistakes a half-full cup with an entirely full cup because of blurry line markings. Any problem with the line marking simply could not have caused this injury.

Normally, when we howl, the moon doesn't respond.

But this time, the Indiana Supreme Court did. (Well, it responded either to our howl or the cup manufacturer's brief; it's probably better for our egos if we don't actually pin down that fact.)

Last week, the Indiana Supreme Court reinstated the trial court's grant of summary judgment, and it did so on the ground that we had identified: "The cup was translucent, and acetaminophen with codeine is a red liquid. The nurse knew that she was supposed to administer a half-cup of medication, and anyone observing her could see whether the cup was half full or completely full. . . . The undisputed evidence thus demonstrates that if there was an overdose in this case, it was not caused by an imprecise measurement of medication attributable to less than readily discernible marks." Id. at 7.

Very nice.

Maybe we'll howl more often, hoping that we'll persuade other courts, so we don't see "the best [judicial] minds of [our] generation destroyed by madness, starving hysterical naked."

Full post as published by Drug and Device Law on September 14, 2009 (boomark / email).