Denver attorney John Palmeri secured a defense verdict in a wrongful death case involving a fentanyl transdermal patch. The case was tried for six days in Mesa County, Colorado. The client, a cardiovascular and thoracic surgeon, ordered 75 microgram per hour transdermal fentanyl patch to control post-operative pain in a hospital setting. The patient was discharged with the patch. He died, at home, in his sleep, eighteen hours after the discharge.
The county medical examiner completed an autopsy and concluded the cause of death was a fentanyl overdose. Plaintiff, a widow in her early thirties with two children, alleged that the use of the transdermal fentanyl patch was negligent. Plaintiff argued that the fentanyl patch was inappropriate for post-operative pain. Plaintiff’s experts relied upon “black “box” warnings by the Food and Drug Administration in support of the medical negligence claim.
The surgeon testified that the medication was used “off-label” to control the patient’s pain until an appropriate plan to control the patient’s pain could be formulated. Defense experts included the Chief of Surgery at the University of Colorado School of Medicine, who testified that the patient’s post operative course was not typical, and was complicated by the patient’s withdrawal from alcohol. The defense presented evidence from a toxicologist that the post mortem blood level of fentanyl was unreliable, because the drug is subject to a phenomenon known as “post mortem redistribution.” The jury of eight found no negligence and returned a verdict in favor of the defendant.