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Drug was intervening cause in medical malpractice death, Md. appeals court says

A jury validly found an Abingdon pain-relief physician not liable in the death of a patient whom she had injected with a contaminated steroid, because the medicine itself was an intervening and superseding cause of the fatal illness, Maryland’s second-highest court has ruled.

In its reported decision, the Court of Special Appeals upheld the Harford County Circuit Court jury’s conclusion that Dr. Ritu Bhambhani had breached the medical standard of care by purchasing the drug from a compounding pharmacy but that it was the drug, not the doctor, which is responsible for the infection that killed Brenda Rozek a decade ago.

The appellate court rejected arguments from her family’s attorney that the drug could not be an intervening or superseding cause because the final act leading to Rozek’s death was the doctor’s injection of medication she should have known was likely contaminated because of its origin at a compounding pharmacy, the since-disgraced New England Compounding Center.

Rozek was treated by Bhambhani in August of 2012 and died a month later of fungal meningitis, the same infection that killed 63 other patients and infected 793 more who were treated that year with the NECC-produced preservative-free drug methylprednisolone acetate, or MPA, according to the U.S. Food and Drug Administration.

Glenn Chin, the company’s former supervisory pharmacist, was convicted in 2017 of having introduced misbranded drugs into interstate commerce with the intent to mislead and related charges. He was later sentenced to eight years in prison.

The Court of Special Appeals said the jury in the lawsuit against Bhambhani could reasonably have credited a medical expert’s testimony that NECC’s deviations from the standards of pharmaceutical practice intervened and caused Rozek’s death.

The jury also could have accepted Bhambhani’s testimony that she believed MPA was safe because she had used it on many patients before without incident and thus its potential harm was not foreseeable, the Court of Special Appeals added in its 3-0 decision last month.

The family’s counsel “insist that it was not extraordinary or unusual, and was completely foreseeable, that NECC, being a compounding pharmacy, would manufacture and ship compromised drugs,” Chief Judge E. Gregory Wells wrote.

“But, as (the family’s attorneys) acknowledge, whether an intervening force rises to a superseding cause is generally a question for the jury,” Wells added. “Here, the evidence presented, including competing testimony from the defense’s expert, and from Dr. Bhambhani herself, admits more than one reasonable conclusion: namely, whether or not it was foreseeable that sourcing MPA from NECC would result in a patient’s death.”

Compounding pharmacies combine ingredients to make drugs tailored to individual patient’s needs. These medications are not approved by the FDA, according to the court’s opinion.

NECC was not a party to the family’s medical malpractice lawsuit against Bhambhani and the Box Hill Surgery Center LLC, where she practiced.

The family’s appellate attorney, James P. Goslee, did not immediately return a message Wednesday seeking comment on the decision and any plans to seek review by the Maryland Court of Appeals. Goslee is with Cohen, Placitella & Roth PC in Philadelphia.

The doctor’s appellate attorney, Catherine W. Steiner, declined to comment on the Court of Special Appeals decision. Steiner is with Pessin Katz Law PA in Towson.

Bhambhani injected Rozek with the epidural steroid on Aug. 31, 2012, to relieve her chronic arm and neck pain. Within a week, Rozek was suffering from a headache, nausea, vomiting, weakness on her right side, double vision and problems with balance, according to the court’s opinion.

She was admitted to Union Hospital in Elkton and transferred to Johns Hopkins Hospital in Baltimore. She died on Sept. 16, 2012.

Rozek’s husband, parents and two daughters sued Bhambhani and Box Hill Surgery Center in Harford County Circuit Court. The trial last summer featured a battle of medical experts over the standard of care and intervening and superseding causes after which the jury found the doctor had breached the standard  but also that the drug was an intervening and superseding cause of Rozek’s death.

The family sought review by the Court of Special Appeals.

Wells was joined in the opinion by Judges Stuart R. Berger and Andrea M. Leahy.

The Court of Special Appeals rendered its decision in Meghan Handy et al. v. Box Hill Surgery Center LLC et al., No. 973, September Term 2021.