Experts for the defense testified that the deaths were due to codeine toxicity because it caused the children to suffer respiratory depression. They contended that the underlying cause of the toxicity was the twins’ own genetic mutation resulting in impaired metabolization and accumulation of codeine. They testified that the genetic mutation was an unknown anomaly which Dr L. could not have been aware of, and thus the deaths were not medical malpractice.

The plaintiff’s medical experts, however, presented an opposing view. They alleged that because the twins were impaired metabolizers, the rate at which codeine was being metabolized into morphine was slowed, not increased. Morphine increases the likelihood of respiratory depression ten-fold, said the experts, thus, slowing down the rate of metabolization would actually create protection against respiratory depression. The accumulation of codeine in the blood means that it has not metabolized into morphine, testified the experts. Respiratory depression would have occurred had the twins been “super” metabolizers rather than impaired metabolizers. The plaintiff’s experts testified that the twins’ genetic abnormality was not the cause of the respiratory depression, but rather a complication of the surgery. 

“The twins suffered from a well-known complication following airway surgeries – respiratory depression due to swelling and physiological collapse of the soft tissues shortly after surgery,” said the plaintiff’s attorney to the jury during closing arguments. “Had they been kept overnight, as the mother wanted but the insurance company refused to authorize, pulse oximetry monitoring would have detected the respiratory depression (regardless of its cause) and allowed nursing staff to resuscitate the boys. Mrs J. wanted to pay for the overnight stay herself, but Dr L. said it wasn’t necessary. It was not his decision to make. It was the patient’s decision to make, in this case the mother of the patients.”

After deliberation, the jury awarded the parents several million dollars.

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Protecting Yourself

The physician in this case was also faulted by the experts for ordering surgery without first exploring other options, such as ordering a sleep study.

The insurance company’s refusal to authorize payment for in-patient surgeries on children 3 or older ignored the fact that the risk of airway collapse was only reduced a miniscule amount before and after a child’s third birthday, according to the experts. It is understandable that a young parent with 2 children that age undergoing surgery would want the peace of mind of having their children monitored in the hospital, where treatment would be available in case of emergency.