If the U.S. Supreme Court were in the business of compensating victims of medical error because of the poignancy of their plight, Diana Levine wouldn't be in suspense about whether the justices would rule in her favor. Levine, a guitarist and pianist from Vermont, developed gangrene after an anti-nausea drug was injected -- and hit an artery instead of a vein. Her arm had to be amputated, and Levine wants the court to uphold a verdict ordering the manufacturer of the drug to pay her $6.7 million.
But the Supreme Court usually doesn't take cases out of sympathy for -- or hostility toward -- an individual. The reason the justices accepted this one is that Wyeth, the drug manufacturer, made an argument with far-reaching implications. Because its packaging includes safety warnings required by the Food and Drug Administration, Wyeth contended, it (and other companies) shouldn't be sued in state courts if a drug harms someone.
Although this is a close case, Levine should prevail -- but not because of egregious misconduct by Wyeth. The company had used a warning approved by the FDA for the drug, Phenergan, that discouraged the method of injection used on Levine and noted that injection in an artery could lead to gangrene and amputation of a limb. Still, the warning should have been stronger.