BANGOR, Maine — A nine-member jury took a little less than two hours to return a 9-0 verdict against a Jonesport doctor for overprescribing methadone and awarded a Corinth woman $1,912,934 in damages.
“Any case with a verdict like that is beneficial because it will make doctors more careful, patients safer, and benefit the community overall in safe prescribing,” said Whalen’s attorney, Matt Morrison of Waco, Texas. “Hopefully the community will be safer now than it was before.”
Charlene Whalen, 59, sued Dr. Steven Weisberger for medical malpractice three years ago, alleging that the dosage of the methadone prescription he gave her for pain was too high, causing her to stop breathing in her sleep one night and suffer brain damage resulting from oxygen deprivation.
Morrison — who represented Whalen on a contingency basis, paying for all the costs associated with the case and taking a percentage of a hoped-for judgment — said the unanimous jury verdict didn’t surprise him.
“I guess I would say I’m not surprised because it was the right decision and juries generally get it right in my experience,” said Morrison, who is now three-for-three in methadone cases he has taken to trial over the last four years. “There were a lot of complex issues in this case that took awhile to get everyone’s head around, but once they understood it, it was pretty clear that there was a breach in the standard of care.”
Neither Weisberger or his attorney, Christopher Nyhan of Portland, were available for comment after the verdict announcement. It’s unclear if they plan to appeal the verdict.
“A lot of the defense’s case involved an us-versus-them mentality, which I frankly didn’t understand,” said Morrison, referring to his status as a Texas resident and a couple of expert witnesses he called who were from Connecticut. “I don’t think it resonated with the jury.”
Nyhan contended that Whalen never mentioned to her pharmacist at the time she filled the prescription that she already had breathing problems and suffered from sleep apnea before coming to Weisberger. He also maintained that Whalen never intended to return to work and therefore wasn’t entitled to compensation for future lost income.
Whalen was referred to Dr. Weisberger, a family practice specialist at Arnold Memorial Medical Center in Jonesport, for treatment of chronic back pain by Dr. Gary Ross, her primary care physician, in August 2006.
Whalen was given Prolotherapy treatment, which involved injections into an area around her spine that intentionally caused inflammation designed to promote healing. The back pain caused her to take a leave of absence from her job at the Maine Department of Health and Human Services, where she worked for 18 years, in 2006.
Morrison and Whalen maintained that the dosage initially prescribed by Weisberger, which jurors were told was eight times the amount recommended by experts in the field, caused her to stop breathing around midnight 2½ days after taking her initial methadone prescription.
Nyhan countered that the FDA said Weisberger’s 40-mg dosage was within “an appropriate range” and that neither the pharmacist — who called to verify the prescription — nor the pharmacy’s computer system — designed to alert pharmacists to any possible side effects or problems — detected any potential complications.
Whalen’s fiance, Bob Ring of Corinth, woke her during the episode but she had 20 to 30 minutes of slow, shallow breathing which caused brain damage that affected her ability to multitask and perform relatively simple jobs and tasks, according to Morrison.
“A 40-milligram dose doubles to 80 milligrams on average within four to five days, so if you don’t understand that process, it’s easy to overdose a patient,” Morrison said. “Some either don’t understand that or ignore it.”
Nyhan noted that neither Whalen’s son nor her daughter — who see or talk to her daily — detected any noticeable changes in her demeanor, appearance or behavior in the days leading up to the night she stopped breathing.
Morrison, who gave credit to Bangor lawyer Brett Baber and Andrew Tuegel from his own firm for their assistance, agreed to represent Whalen after she contacted him through a referral she received from the founder of an online support group who happened to be one of Morrison’s clients.
“I’ve been litigating methadone cases for four years from Cali to Maine, and most of them have involved deaths,” Morrison said. “This is actually the only case I’ve taken where the client survived an assault on their body from methadone.”