Iowa Court Denies New Trial in Pharmacy Lawsuit

By DAVID PITT | July 3, 2012

A woman left with eye problems when she didn’t get the right medication after surgery won’t get a new trial in her lawsuit against a pharmacy, even though new evidence that surfaced as the trial was beginning surprised her attorney, the Iowa Supreme Court ruled Friday.

The case centered on medication prepared by C.R. Pharmacy Service, which does business as Fifth Avenue Pharmacy. The medication was to be applied by Misty Whitley’s doctor immediately after surgery. However, after Whitley developed problems, it was discovered she did not get the right medication.

Whitley, of Marengo, sued Dr. Lee Birchansky and the Cedar Rapids pharmacy in 2007 but dropped Birchansky from the lawsuit and pursued a malpractice and negligence claim against the pharmacy claiming it supplied the wrong product for her surgery. A jury found a verdict in favor of the pharmacy.

Whitley has since filed a new lawsuit against Birchansky after the pharmacy manager discovered documents that indicated the medication ordered by Birchansky had not been picked up by his office from the pharmacy until after the surgery had been completed.

Those documents were at the heart of the appeal that led to the Supreme Court’s decision Friday. The manager who discovered the documents a few weeks before the trial told his attorney. However, that information was not passed on to Whitley’s attorney.

The Supreme Court found the pharmacy’s attorney violated a duty to disclose the new information, but it said the judge did nothing wrong in allowing the evidence. The judge delayed the trial so Whitley’s attorney could explore the new evidence and interview additional witnesses.

The saga began when Whitley went to the Fox Eye Clinic in Cedar Rapids in 2005 hoping to improve nearsightedness with a procedure that involves using a laser to sculpt the shape of the cornea. Then, in March 2006, she had a corneal scraping procedure to repair scarring of the cornea in both eyes, a common risk with laser eye surgery.

After that surgery, her eyes developed signs of cataracts and glaucoma. An investigation and testing revealed the substance applied to her eyes after surgery was not the medicine ordered by her ophthalmologist Birchansky.

She had to undergo corneal transplant surgery. After a subsequent accident, she lost her left eye.

Whitley asserted the pharmacy delivered the wrong prescription, which the doctor applied to her eyes. The pharmacy maintained it delivered the correct prescription and the doctor mistakenly applied the wrong substance.

Then, at the beginning of the trial, the pharmacy’s attorney said it could not be at fault because it didn’t deliver the medication before the surgery took place. The attorney disclosed the documents on the second day of the trial during questioning of the doctor.

Whitley’s attorney wanted the evidence excluded from the trial, but the district court judge denied that request.

The Iowa Court of Appeals ordered a new trial, finding that the surprise Whitley’s attorney encountered by the new evidence was too prejudicial for the district court to refuse to exclude the evidence.

The Supreme Court reversed that decision and agreed with the district court judge that the evidence should have been allowed.

“The district court did not abuse its discretion when it made its decision to grant a continuance and deny the request to exclude the evidence,” the justices wrote. “Based on the circumstances existing at the time the decision was made, the trial court pursued a reasonable course of action.”

Robert Breckenridge, of Ottumwa, who represented Whitley, said he continues to believe the conduct of the pharmacy’s attorneys should not have been rewarded by the court.

Court records show a scheduling conference in the lawsuit against Birchnasky is set for July 24.

Birchansky’s attorney, Hayward Draper, of Des Moines, said the case was dropped against the doctor the first time because Whitley’s attorneys concluded the doctor provided good care and did nothing wrong in his treatment of her.

“The new lawsuit is completely without merit because Dr. Birchansky did provide good care and did do nothing wrong,” Draper said.

An attorney for the pharmacy, Chris Bruns, of Cedar Rapids, said the pharmacy had not authorized him to comment further about the case.

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