That’s an unkind title, I know. But really, when the plaintiff’s attorney submitted a pharmacist’s affidavit in opposition to a physician’s motion for summary judgment (which was supported by a physician’s affidavit), what did he think was going to happen?
The case under discussion is Beistline v. Footit, https://appellate-records.courts.alaska.gov/CMSPublic/Case/General?caseID=25609 (Alaska 4/23/2021). (On the linked page, click the “Document” icon to see the opinion.) The plaintiff presented at the Fairbanks Memorial Hospital emergency department with “generalized weakness, ataxia and confusion.” She was admitted to the hospital by the defendant, a hospitalist who is board certified in internal medicine.
The plaintiff’s husband provided her medical history because she was “too delirious” to do it herself. Briefly, the plaintiff was taking several prescription medications, including benzodiazepines and Ambien, plus herbal remedies, plus she had a “surgically implanted port in her chest so she could self-administer ‘vitamin bags’….No documentation was available to Dr. Footit [the defendant] about what was in the vitamin bags or the dosage or frequency of [the plaintiff’s] medications; according to [her husband], she was ‘somewhat secretive about her therapies.’ She had ‘a box full of different medications,’ but Dr. Footit could not determine which ones she was taking.” The plaintiff had obtained all this “treatment” from out-of-state “medical professionals” who saw her once a year. (See the opinion for additional distressing details. The way the out-of-state providers took advantage of the plaintiff is horrifying. They’re the ones who should have been sued.)
Because [the plaintiff] had no local physician in Alaska and had sought what Dr. Footit believed to be unorthodox and “frankly potentially dangerous medical therapies” without any significant oversight, Dr. Footit found it difficult to diagnose the causes of her problems. But he believed her to be “at significant risk for unintentionally overdosing on her [regimen] of [central nervous system]-active meds.” He ordered a hold on her “chronic outpatient medications” and herbal remedies. He planned to give her “some IV fluid resuscitation” and “isotonic saline” to correct her sodium levels while monitoring her progress over a 24-hour period. He also planned a toxicology screen; an initial opiate screen was positive, which he found concerning because she did not appear to have any prescriptions for opiates.
The next day, February 7, a surgeon removed [the plaintiff’s] implanted port, having determined that her change in mental status was “most likely secondary to early sepsis/bacteremia.” On February 9 [she] had a tonic-clonic seizure and was transferred to the Intensive Care Unit. Three days later she was discharged for outpatient treatment.
The plaintiff claimed that the defendant’s withdrawal of her benzodiazepines was a breach of the standard of care and had caused the seizure. The defendant filed a motion for summary judgment, supported by the affidavit of a board certified internist:
He attested that because Marcie {the plaintiff} was delirious, “[t]he standard of care require[d] that potential causes of the pathology be treated and eliminated.” He explained that Dr. Footit did this by first “correcting the hyponatremia and treating the sepsis from the implanted port.” He further attested that “because Marcie was on medications that could cause delirium, in prescribed dosages exceeding recommended amounts, and because Dr. Footit could not ascertain how Marcie was taking her medications,” Dr. Footit acted competently by withdrawing them; in fact…“[i]t would be irresponsible NOT to eliminate a potential drug cause of delirium.”
The trial court granted several extensions of time, totaling 98 days, for the plaintiff to respond to the motion. Evidently the plaintiff’s attorney simply couldn’t find an internist to support the case, because the opposing affidavit he finally submitted was by a pharmacist, who
attested that there were strict protocols governing how patients were removed from [benzodiazepines], and that a failure to follow the protocols could contribute to seizure. He opined that…“given the risks of abruptly discontinuing benzodiazepines…in a patient with long-term physical dependence on these medications, following proper protocols for weaning and discontinuing medication is the standard of care. This standard of care should be general knowledge to a board certified internal medicine physician, but, if not, then there should have been a consult between the internist and the hospital’s pharmaceutical department.”
The trial judge granted the motion, and the Alaska Supreme Court affirmed. Interestingly, the court accepted the plaintiff’s argument that the pharmacist was “trained and experienced” in the proper protocols for weaning and discontinuing medication, and that those protocols were “directly related to…a matter at issue” in the case. (Quoting statutory language concerning the qualifications of expert witnesses in general.) At trial, the pharmacist might have been allowed to testify about those protocols, and perhaps even on the known risk of seizures following the abrupt withdrawal of benzodiazepines – the court didn’t say. What the pharmacist could not do was opine on the standard of care for an internist, because the “should” language in his affidavit “concedes that he does not know whether the withdrawal protocols he describes, known to a pharmacy expert, are also ‘general knowledge to a board certified internal medicine physician,’ although he believes that they ‘should be.’ And nothing in his affidavit indicates that he has a basis in training or experience for knowing the answer to that question or for knowing the circumstances under which an internist would consider it necessary to consult ‘the hospital’s pharmaceutical department.’”
The trial judge had granted the motion on straightforward basis that only a board certified internist can opine on the standard of care for a board certified internist. The supreme court’s more roundabout approach was necessitated by the fact that the Alaska statute governing the qualification of medical malpractice experts doesn’t expressly refer to board certification; instead, it requires a med mal plaintiff to prove that the defendant did not exercise “the degree of care ordinarily exercised under the circumstances…by health care providers in the field or specialty in which the defendant is practicing.” Presumably, if the pharmacist’s affidavit had demonstrated that he had actual knowledge – based on, say, a 30-year career as a hospital pharmacist and hundreds of consults with internists – “the degree of care ordinarily exercised under the circumstances” would require an internist to consult with the hospital’s pharmaceutical department, the affidavit would have been sufficient to defeat the motion for summary judgment. Perhaps that possibility gave the plaintiff’s attorney a shred of hope that his gambit might succeed.
