I am a nurse. I was pregnant with my first child while working in ICU for the employer in question. I was given a patient assignment one morning in 2007 that included a patient with HIV. I asked to switch this patient for another, as I didn't think it was worth the risk of taking care of her. The nurse in charge of the assignments refused. While disconnecting the patient's nasogastric tube later in the day, her stomach fluids splashed into my eyes. I was seen by occupational medicine at the facility an hour or so later, and, after discussing first with my OB doctor on the phone, was put on the HIV med Combivir prophylatically. I was 14 weeks pregnant at that time. I took the drug as recommended for 10 days, as of which time the patient in question had been determined to have an undetectable viral load and I was taken off the Combivir.
My daughter was born with a deformed right 4th toe, and at 6 months of age was found to have a pulmonic heart murmur on a routine exam. Now, at age 3, she has had to have surgical intervention to her teeth that have been found by her dentist to have poor enamel and structure. Her dentist tells me that this may have been caused by the Combivir, since there is no history of problems during my pregnancy. My second child, who is now 21 months, has had no medical problems, and has had her first dental check up, and has normal teeth.
My question is, can I pursue legal action against my previous employer for putting me and my developing child in that situation to begin with? Please advise. Thank you.
Law Offices Michael J. Brooks, Esquire
Attorney@Law-Brooks.com “Perspective from the Legal Vantage Point”
The above advice of attorneys Andrew Daniel Myers and Joseph Jonathan Brophy is very good, and I agree with them both. As a further answer, Combivir® (lamivudine/zidovudine), as you know is a prescription HIV medication. It may not be safe for use during pregnancy, although in some circumstances, the benefits of Combivir may outweigh the potential risks. Informed consent may be an issue, and what information you were provided about the potential risks, prior to being prescribed Combivir®.
The U.S. Food and Drug Administration (FDA) uses a category system to classify the possible risks to a fetus when a specific medicine is taken during pregnancy. Pregnancy Category C is given to medicines that have not been studied in pregnant humans but that do appear to cause harm to the fetus in animal studies. Also, medicines that have not been studied in any pregnant women or animals are automatically given a pregnancy Category C rating. While there have been no adequate studies of Combivir® in pregnant woman or animals, the individual components, zidovudine and lamivudine have been studied in pregnant animals, and zidovudine has been studied in pregnant humans.
In one study, when zidovudine was given to pregnant rats, it increased the risk of miscarriages, but did not seem to increase the risk of birth defects. However, another study suggested that very high doses of zidovudine may cause birth defects in rats. In general, animal studies show that zidovudine is probably safe for use in pregnancy, although there is some evidence that it may affect fertility and early pregnancy development.
Zidovudine has also been studied in pregnant women. As you know, it is approved to be used during pregnancy to help prevent the transmission of the HIV virus to the baby. In one study, zidovudine reduced the risk of HIV infection in the newborns by up to 86.7 percent. These studies showed that zidovudine generally did not increase the risk of birth defects or other problems.
In studies, giving lamivudine to pregnant rabbits appeared to increase the risk of early miscarriages, although this was not seen in studies involving rats. In both rats and rabbits, lamivudine did not seem to increase the risk of birth defects. In general, case reports of lamivudine use in pregnant women suggest that it is probably safe for use during pregnancy.
While you were pregnant, it was a good idea, as you did to ask your healthcare provider before taking any medication. You and your healthcare provider should have considered the possible risks and benefits of using Combivir in your particular situation, as well as any other treatment alternatives.
Although the statute of limitations in personal injury (as to employer) and medical malpractice (informed consent) cases is two years, under the discovery rule it may be extended. For any claim your child may bring, it is two years from the child’s 18th birthday.
Mr. Myers advice is good and for the most part I agree with it. There is something called a workers compensation bar that prevents you from suing your employer. There is also a short statute on workers compensation cases. Your daughter was not an employee and in theory might be able to sue your employer for injuries to her before she was born. But, there is going to be a very serious problem proving that her problems were causally related to the Combovir you took. Cases of this sort are extremely difficult and attorney generally won't even review them unless there is a very serious injury to the child, in the nature of a neurological injury or a severe deformity of some kind.
That the dentist told you the condition "may have been caused" by the medication does not help. The correct legal standard is 'by a preponderance of the evidence'. This is sometimes stated as "to a reasonable degree of medical certainty."
As to a workers compensation claim, you've got statute of limitation problems. Workers compensation benefits act as a bar against a direct civil action against the employer in all but wilful wanton reckless type scenarios and from the legal use of those words, and some research I did for jury instructions, my opinion is that this will not apply even if you could overcome the statute problems.
I am licensed only in Massachusetts and New Hampshire and so I suggest that you obtain a consultation with one of the AVVO attorneys in the Philly area.
Law Offices of Andrew D. Myers
North Andover, MA - Derry, NH
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