© The Medical-Legal News 2007
The Medical-Legal News asked experts on pharmaceuticals and medical malpractice cases to analyze the facts of Smith’s death, and to offer likely defense or plaintiff strategies in the hypothetical event her tragic end were brought to trial.
The Medical-Legal News’ two experts on medical malpractice were Keith McCormick, a former prosecuting attorney and experienced med mal lawyer, and Vicki Turner, a legal nurse consultant with extensive knowledge of med mal cases and related medical records. McCormick and Turner read the story to the left, the list of Smith’s medications, and used their own indirect knowledge of the case to offer these opinions:
Plaintiff view/McCormick: This case is a classic example of the right hand not knowing what the left hand is doing. While it may be possible that all the physicians had good reasons to provide the treatments they did, and they may hope to rely on that as a defense, they are not operating in a vacuum and they have a duty to know what the other person is doing with prescriptions.
To not ask your fellow physicians, to not make a simple call to other physicians, or perhaps not even to get an adequate medical history from the patient herself, that is the malpractice. The care that you provide might be fairly innocuous, but if it’s done in a vacuum, something that you might consider to be fairly routine could be fatal or catastrophic. To me that’s the big lesson in Smith’s medical treatment.
Many other issues come into play. We cannot let the celebrity excitement enter the mix in professional judgment. We have seen pictures of her doctor with her at a local pub with his shirt off. It’s not a shade of gray — it is a razor sharp line: If you are a physician, act like one and do not undertake another relationship. It is not just romantic, you could be a neighbor or friend — your judgment will be affected. Howard K. Stern was her attorney before he was her boyfriend, for instance. This is a quintessential case because we have both doctors and lawyers whose relationships went outside of the office. You traditionally do not go out and party with the people you are trying to serve.
We also have medical facilities and two pharmacists involved. When you start handing out drugs, you cannot do it unilaterally. Even if Smith were not a celebrity — say just someone you know and trust well — it is not a reason to get lazy and fail to have a complete medical history.
You also would presume that people were treating her appropriately. But let us take this back to the Elvis [Presley] days: Is it possible that somebody will have access to private physicians and be able to get medicine without needing to see a physician? Can a trusted family member or attorney call up and say “I think I need an antibiotic?” That’s atrocious.
My speculation is that the laundry list of medicines came from multiple sources. I cannot imagine that all of them in those doses came to this one patient from one source.
There were times — documented on TV — when she was incoherent. The doctors in this case had a video of a patient acting bizarrely. This would not happen with the average citizen. Is there not a point as a doctor or pharmacist when you say “this woman has been in the forefront of negative press for being impaired for two years, so isn’t it time to say I’m not participating in this?” Isn’t there a time that I say to the patient that you be treated for the problem you have with your treatment? I don’t know if anyone ever stepped up and addressed this with Smith.
There comes a point when patient behavior can become destructive enough that one does not need to assist in the destruction. She should have been referred for dependency problems, or a doctor could have said “you do need treatment from me, but in concert with dependency treatment.”
There were all these red flags: Stern was with her all the time, she had been pregnant and her grown son may have died of drug-related causes.
When a patient is pregnant, most medical providers do not want to take any steps in the treatment of a patient beyond the obvious OB-GYN care. It is a huge red flag. Care of the pregnant patient should raise itself to a higher level than for the patient who is not. A pregnant patient should call for extra concern with regard to prescriptions. The risk is greater.
Another red flag is that while Smith’s life’s circumstances are rare, from a common sense standpoint there is a lesson for all medical providers: When are there enough signs of trouble? She was documented as impaired, had been pregnant, was going though personal tragedies such as a recent dead spouse and related inheritance complications, the birth of a child and the death of a grown son, and tensions with her mother. This is a high risk patient.
We will never see again a case of someone struggling so well documented.
Defense view: From a defense point of view, the best defense for any one care provider or physician is that he or she was not provided the full picture, and that what each did was reasonable with the best information at hand.
Comparative or contributory negligence compounds this case. We must compare the role a provider had with the role the patient had. If the patient is partially responsible, then it is a partial defense. The patient could have been hiding behavior or not forthcoming with her history. With contributory negligence, has the patient’s behavior been so bad as to be a complete bar to recovery? This could be the case here. The patient’s behavior could have interceded in a way that no matter what the provider did, the outcome still would have been bad. If a patient is taking too large a dose, or taking medicine more often than is prescribed, or taking it with a medication that was not disclosed to the doctor, then that doctor is not responsible for the bad outcome. A bad outcome alone does not create liability.
The business of medicine is treating a lot of people who are ill, some of whom are not going to successfully respond.
Lawsuit realities: This is the type of claim that would require the attorney to look at a very practical issue: Can he or she carry that type of claim for every type of medical care Smith received? There will need to be a medical expert for each component: pharmacology, treatment practices, etc. She did not die of a single cause. Causation here will be a nightmare.
Most states do not recognize a loss for an unmarried partner, so boyfriend Stern cannot bring the suit.
The child is the principle heir. The child’s guardian would logically pursue a claim for the child. While defense could say that DanieLynn [the child] will receive her mother’s money sooner as a result of her mom’s death, in a wrongful death action we look for income potential. Smith had a way of parlaying her status into income, so the balance lost over her lifetime is to be considered, or the lost income capacity. And she has lost the right to make money. There also is loss of consortium for DanieLynn.
Defendants have the right to bring in codefendants, and any sued doctors would bring in Howard K. Stern in a heartbeat, as he may share some culpability — resulting from being in her presence for a long period of time. •
Written as a letter of merit submitted to an attorney client.
I have reviewed the materials you provided to me regarding the death of Anna Nicole Smith as well the 2006 Mosby’s Nursing Drug Reference. I chose this reference because you asked me to review this matter from the perspective of a nurse.
Based on my review of the above mentioned materials, my education, experience and the assumption that a private nurse was caring for Ms. Smith, it is my opinion that the private nurse or nurses failed to meet the recognized standard of care. It is also my opinion that this deviation, more likely than not, contributed to the death of Ms. Smith.
I have included a chart of the medications found in Ms. Smith’s body [next page]. I have included the facts pertinent to Ms. Smith. As you can see, most of these are CNS (central nervous system) depressants. These medications in combination with each other can cause a myriad of symptoms including, but not limited to, severe respiratory depression, cardiac dysrhythmias, disorientation, hallucinations, circulatory depression, hypotension and cardiac arrest. All of these side effects would be greatly increased by a state of debilitation.
Ms. Smith was in a debilitated state, most likely sepsis, as a result of an IM injection given through an already existing abscess on her buttocks. She developed a fever of 105°F degrees which was decreased to 97°F degrees by immersing her in a tub of ice. She was on antibiotics, although not “powerful” antibiotics as stated by Dr. Perper.
By not insisting on hospital care and by administering the drugs that were found in Ms. Smith’s body, her healthcare provider was grossly negligent and more likely than not contributed to her death. •
Vicki B. Turner, RN, CCRN
For a list of the drugs in Smith’s system, click here.