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WIFE STATES CLAIM AGAINST DENTAL MANAGEMENT COMPANY FOR DELIVERY OF DRUGS HER SURGEON HUSBAND OVERDOSED ON.

By Greg Piche'

The denial of the defendant?s motion to dismiss in the case of Kim v. Interdent, Inc., No. C 08-5565 SI in the U.S. District Court for the Northern District of California seems to fall among those odd ?man bites dog? cases that are both perplexing and irrational. Ms. Kim is the surviving spouse of Dr. Richard D. Bae, who apparently developed a fondness for Fentanyl, a highly addictive drug used primarily by anesthesiologists in sedating patients. The defendant, a dental practice management company, delivered the drug to Dr. Bae, in bulk, which he proceeded to carry around to the various Interdent offices where he performed procedures. Dr. Bae accidently overdosed on the drug and collapsed on the bathroom floor of the Interdent office in Stockton, California, on December 13, 2006. He never regained consciousness and died on April 16, 2007.

Dr. Bae was an independent contractor engaged by Interdent to provide oral surgery to its patients. The revised complaint asserted negligence in that ?Interdent knew or had reason to know,? that Dr. Bae was suffering from stress, fatigue, and frequent illness that made him vulnerable to using drugs to manage and control those symptoms and Interdent did not maintain a centralized location for storing controlled substances like Fentanyl or otherwise monitor or control Dr. Bae?s use of them.

The court noted that the parties to the litigation had not located any case law dealing with the duties owed by a supplier of controlled substances to a physician or dentist who is legally permitted to handle them. (There is probably a good reason for the absence of cases there.) The parties focused instead on ?dangerous instrumentality? case precedents like those involving automobiles and firearms. Ms.Kim relied heavily on a California case involving failure to take precautions in leaving a bull dozer unattended in public. The correlation between leaving a bulldozer unattended in public and leaving addictive sedation drugs with a peripatetic surgeon to legally administer them seems a stretch, but this is California after all.

The court also held that Ms. Kim stated a proper claim for negligence per se, because Interdent allegedly violated a federal regulation that requires any person who ?dispenses? controlled substances to provide effective controls against theft or diversion of controlled substances . The court, in effect, ruled that Dr. Bae was in the class of people to whom Interdent, as a ?dispenser? owed a duty and to whom the regulations were designed to protect.  This sort of thinking smacks of the same mentality that thinks it necessary to put notices on mail that it will not be delivered without a stamp. So it goes.

Full post as published by Healthcare Law Blog on December 06, 2009 (boomark / email).