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A head-on collision between a pick-up truck driven by a drug addict under the influence of addictive prescription medication and a car holding a West Virginia family has led to an unusual third-party medical malpractice judgment against the U.S. government. U.S. District Judge Charles H. Haden II of the Southern District of West Virginia recently ordered the United States to pay $4.5 million to the estate of Sammy Hubbard, who was killed in the accident, and his wife and daughter, who were injured. Haden ruled that Dr. Prakob Srichai, who treated the driver of the pickup, had been negligent in “continually and repeatedly prescribing addictive medications” to the driver and that this negligence was a proximate cause of the injuries. The federal government was on the hook for the judgment because Srichai had worked for a rural clinic supported by federal funds. The accident occurred on a two-way rural road in Logan County, W.Va., on July 20, 1997. The pickup truck driver, Terry Hoosier, was weaving all over the road, then crossed the center line, hitting the Hubbard car head-on, said plaintiffs’ attorney J. Timothy DiPiero of Charleston, W.Va.’s DiTrapano, Barrett & DiPiero. Sammy Hubbard, 26, was killed. His wife, Lynn Hubbard, sustained a broken neck, but has since recovered. Their daughter Katie was paralyzed from the waist down; a second child, a 19-day-old boy, was unharmed. At the time of the accident, DiPiero said, “Hoosier was under the influence of drugs prescribed by Dr. Srichai.” These medications included a muscle relaxer, an antidepressant, a pain medication and a cough medicine with codeine. Following the accident, the plaintiffs sued Hoosier and received the maximum from his insurance company, said DiPiero. ADDRESSING A ‘QUIRK’ The plaintiffs had also sued Srichai, but were forced to dismiss this action and sue the federal government because Srichai worked for a rural clinic supported by federal funds through the U.S. Department of Health and Human Services. “We didn’t realize that there was this quirk in the law,” said DiPiero. Because the government funded the clinic, the clinic was an agent of the United States and Srichai was therefore an employee and agent of the United States. As a result, the plaintiffs had to make a claim against Srichai by suing the government under the Federal Tort Claims Act. This meant the case would be tried before a judge, not a jury. Hoosier had been a patient of Srichai for 17 years, and while other doctors had refused to prescribe painkillers and other addictive drugs, he was always able to get the prescriptions from Srichai, DiPiero said. Shortly before the Hubbard accident, Hoosier had been released from prison. “While he was in prison, he had gotten off the drugs. But after being released, Hoosier went to Srichai and told him, ‘I got these drugs in prison,’” and the doctor then prescribed the addictive medications, DiPiero charged. Following the bench trial, Judge Haden ruled that the Hubbards’ death and injuries “were proximately and foreseeably caused by the negligence of Srichai, the employee and agent of the defendant. Srichai had treated Hoosier for 17 years with a profound awareness that Hoosier was a binge drinker and that he would abuse any substance that gave him ‘a high.’” The court assigned 33 percent of fault to the U.S. and 67 percent against Hoosier. The entire judgment is recoverable from the government, said DiPiero, under West Virginia rules on joint and several liability. Ironically, the government had almost escaped any adverse judgment through a previous ruling by Haden. Before the trial, the government sought a dismissal, contending that West Virginia law does not recognize third-party claims against a doctor arising out of the negligent treatment of a patient. Haden initially agreed and dismissed the action. Then in May 2001, he granted a motion for reconsideration, agreeing that the West Virginia Medical Professional Liability Act applies to third-party acts. Osborne v. U.S., No. 2:99-0759 (S.D. W.Va.). The attorney for the United States did not return telephone calls for comment.

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