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Almost immediately after former Congressman Edward M. Mezvinsky was indicted for a series of fraud schemes that amounted to $10.4 million, the trustees in his bankruptcy case filed a lawsuit that says his mental condition was damaged by the adverse side effects of a prescription drug. Now the lawyer for the hospital and the doctor named in the suit are asking a federal judge to dismiss them from the case because Pennsylvania law does not allow suits against physicians for failing to warn of the side effects of a medication. “Under Pennsylvania law, the duty to obtain a patient’s informed consent is limited to surgical procedures and to the surgeon performing an operation,” attorney Adrian R. King of Post & Schell wrote in a motion filed Monday on behalf of Presbyterian Medical Center and Dr. Bradley W. Fenton. If King succeeds, Mezvinsky’s suit would continue only against the drug companies — Hoffman-La Roche Inc. and Roche Laboratories in Nutley, N.J., and their Swiss parent company, Roche Holding AG — and the Babis Pharmacy in Merion, Pa. According to the suit, Mezvinsky — the husband of former U.S. Rep. Marjorie Margolies-Mezvinsky of Pennsylvania and a congressman himself who represented Iowa in the 1970s — was taking the drug Lariam throughout most of the 1990s as a prophylactic against contracting malaria during his frequent trips to Africa. But Mezvinsky claims he was never warned of the drug’s possible side effects, such as hallucinations and psychotic or paranoid reactions. After taking the drug for years, Mezvinsky claims he suffered from a slew of symptoms that compromised his mental abilities, including “progressively greater difficulty in concentration; indecisiveness; misjudgment; forgetfulness; compulsiveness; lack of initiative; and uncharacteristically poor business judgment.” For Mezvinsky, success in the civil suit could be critical to his criminal case because his lawyers intend to argue that his mental capacity was so compromised that he could not form the intent to commit the crimes. The suit was filed by attorneys Michael F. Barrett and Jennifer Holumzer of Saltz Mongeluzzi Barrett & Bendesky in the Philadelphia Court of Common Pleas, but has since been removed to U.S. District Court. According to the suit, Mezvinsky began traveling to Africa on a regular basis in the 1980s and initially took the drug chloroquine to prevent contracting malaria. But in later years, Mezvinsky switched to mefloquine, a drug developed by the Walter Reed Army Institute during the Vietnam war which is now manufactured by Hoffman-La Roche under the brand name Lariam. Travelers begin taking the drug up to two weeks before leaving for Africa and continue taking it on a weekly basis while there, the suit says. But the suit says Mezvinsky “was never warned of any of the side effects or adverse reactions of the drug” by the manufacturer, his doctor or the pharmacies. Throughout his decade of ingesting the drug, the suit says, Mezvinsky “suffered from gradually worsening health.” But he didn’t make the connection between his symptoms and the drug until June 2000, the suit says, when he was alerted of reports that soldiers and civilians who took Lariam over long periods suffered from numerous side effects. The suit says many of the symptoms Mezvinsky suffers are physical, including fatigue, weight loss, hair loss, muscle weakness and diarrhea. Other symptoms are mental, the suit says, including nervousness, irritability, mood swings, depression, forgetfulness and “a form of psychiatric toxicity.” But Mezvinsky’s criminal defense lawyer, Mark Cedrone of Philadelphia’s Carroll & Cedrone, is sure to focus on the final claims in the suit — that due to taking Lariam, Mezvinsky “suffered from an inability to make rational decisions and judgments.” The suit blames the drug for all of Mezvinsky’s current financial woes. “As a result of the psychiatric syndrome caused by his long-term use of Lariam, he invested rashly in bad investments … [and] depleted his own financial resources, his wife’s financial resources, as well as his wife’s inheritance,” the suit says. In the indictment, Mezvinsky, 64, is charged with 56 counts of mail and wire fraud; filing false tax returns; and “structuring” his financial transactions to avoid federal reporting requirements for transactions over $10,000. Assistant U.S. Attorney Robert Zauzmer said Edward Mezvinsky himself was the victim of several fraud schemes perpetrated on him by con artists in Africa. Between 1989 and 1999, Zauzmer said, Mezvinsky lost about $2.6 million in so-called “Nigerian advance fee schemes” in which the victim is often promised vast sums of money in return for paying “fees” to con artists posing as legitimate businessmen. But Zauzmer said Mezvinsky more often played the role of victimizer. In the five-year period beginning in January 1995, Mezvinsky deposited more than $13.3 million in his accounts, Zauzmer said, and about 82 percent of those funds were acquired through fraud or embezzlement. During the same period, Zauzmer said, Mezvinsky spent all of the money. About 44 percent went to paying off creditors and fraud victims, he said, 19 percent was spent on personal and business expenses, and 17 percent was spent in cash. PRELUDE TO A DEFENSE Mezvinsky’s lawsuit over the side effects of Lariam is clearly a prelude to the mental defense he is expected to raise in his criminal case. But attorney King argues that neither the hospital nor Mezvinsky’s doctor should have been named as defendants. “Under Pennsylvania law, there is no cognizable cause of action against a physician for failure to obtain informed consent related to the prescription of a medication,” King wrote. “Physicians do not have a duty to warn patients of any side effects, risks, complications or alternatives related to the prescription of medications,” he wrote. In Pennsylvania, King argues, a claim of lack of informed consent is not considered negligence, but rather assault and battery. “The Pennsylvania courts have expressly resisted the trend among some courts of other jurisdictions to view a lack of informed consent action as sounding in negligence rather than battery,” King wrote. As a result, King argues, Pennsylvania law limits informed consent claims to surgical procedures. Mezvinsky’s suit includes a claim against the doctor for “negligent misrepresentation,” but King argues that such a claim is “synonymous” with an informed consent claim and that Mezvinsky’s lawyers are merely “dressing it up as a cause of action for negligent misrepresentation.”

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