My wife died from a virus that doctors believe was caused by an infusion type drug for lupus. After an incorrect diagnosis of Lupus Cerebritus specialists diagnosed her as having the JC virus which caused PML in her brain. She passed away about 3 weeks after this diagnosis. The specialists believe that the virus was caused by the drug Ben-Lysta which was prescribed to her for control of her lupus symptoms. I am not sure if this would fall under "failure to diagnose", "bad drug", or "wrongful death". Do I have any actionable recourse here for her loss?


The consumer expectation test is not appropriate to measure a design defect in prescription drugs. “While the ‘ordinary consumer’ may have a reasonable expectation that a product such as a machine he purchases will operate safely when used as intended, a patient’s expectations regarding the effects of such a drug are those related to him by his physician, to whom the manufacturer directs the warnings regarding the drug’s properties. The manufacturer cannot be held liable if it has provided appropriate warnings and the doctor fails in his duty to transmit these warnings to the patient or if the patient relies on inaccurate information from others regarding side effects of the drug.” [Brown v. Super.Ct. (Abbott Laboratories). For instance, under a negligence theory, a prescription drug manufacturer’s duty to provide adequate warnings may extend to patients whose physicians foreseeably rely upon the manufacturer’s product information and warnings when prescribing a generic equivalent.[Conte v. Wyeth, Inc. (2008) 168 CA4th 89, 98–102, 85 CR3d 299, 308–311 & fn. 5]

However, a patient’s death or deterioration of an existing condition may be the result of concurrent causes: the existing illness or condition and alleged medical malpractice (e.g., physician’s failure to properly diagnose or treat the condition). The malpractice is not actionable unless it—and not the existing condition—was the probable cause (greater-than–50% likelihood) of the injury or death. In one case, it was held that the physician not liable for malpractice in failing to test fetus for Down’s Syndrome since test only 20% reliable (no probability result would have been different had condition been detected)] [See Simmons v. West Covina Med. Clinic (1989)]. Thus, in a wrongful death action based upon a physician’s negligence in failing to timely diagnose a medical condition which ultimately proved terminal, plaintiff cannot prevail unless the physician’s negligence was the probable cause of death. If the decedent’s chance of survival immediately prior to defendant’s negligence was only 50% (or less), it is mathematically not probable that the physician caused the death. Although the negligence may have further decreased decedent’s chance of survival, such a “lost chance” is not itself actionable. Another case held that a chemotherapy overdose that decreased patient’s chance of recovery from 91% to 80% not actionable Duarte v. Zachariah, supra, 22 CA4th at 1657–1658, 28 CR2d at 91]. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury case.

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