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Dexter v. Drasby

Superior Court of Maine

February 5, 2016

WILLIAM AND CYNTHIA DEXTER, Plaintiffs
v.
EDWARD J. DRASBY, D.O., PORT CITY NEUROLOGY, and LISA FALEY HOWARD, Personal Representative of the Estate of Richard Faley, Defendants

JULIAN SWEET ESQ BERMAN & SIMMONS, PETER DELBIANCO ESQ LAMBERT COFFIN, MARK LAVOIE ESQ, CHRISTOPHER TAINTOR ESQ NORMAN HANSON & DETROY, ELIZABETH GERMANI ESQ GERMANI MARTEMUCCI RIGGLE & HILL

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROLAND COLE CHIEF JUSTICE, SUPERIOR COURT

Before the court is defendants Edward Drasby and Port City Neurology's motion for summary judgment in plaintiffs William and Cynthia Dexter's medical malpractice action. For the following reasons, the court denies the motion.

I. FACTS

Defendant Edward Drasby, D.O., is a neurologist who specializes in the treatment of patients with movement disorders, including Parkinson's disease. (Supp. S.M.F. ¶ 2.) Dr. Drasby diagnosed Mr. Richard Faley with idiopathic Parkinson's disease on October 5, 2006. (Id. ¶ 1.) Dr. Drasby treated Mr. Faley for Parkinson's disease from this date until Mr. Faley's death in 2011. (Id. ¶ 3.) During this time period, Mr. Faley also suffered from other conditions, including atrial fibrillation, congestive heart failure, glaucoma, and uveitis.[1] (Id. ¶ 5.) As a result of his glaucoma, Mr. Faley had some loss of visual acuity and visual field loss in both eyes. (Id. ¶ 61.)

Dr. Drasby prescribed Mirapex as part of his treatment of Mr. Faley's Parkinson's disease. (Id. ¶ 12.) Mirapex is a dopamine agonist, which means it acts chemically in much the same way as dopamine, a neurotransmitter whose production is inhibited by Parkinson's disease. (Id. ¶¶ 4, 13.) Dr. Drasby gave Mr. Faley a Mirapex "starter kit" on November 3, 2006. (Opp. S.M.F. 20.) On November 30, 2006, Dr. Drasby instructed Mr. Faley to increase his dose of Mirapex to 0.6125 mg three times per day for one week, followed by 0.75 mg three times per day for two weeks, and then 1 mg three times per day after that. (Id.)

On December 10, 2007, Mr. Faley reported to Dr. Drasby that he was experiencing drowsiness, which is a side effect of Mirapex. (Id; Supp. S.M.F. ¶ 17.) Specifically, he reported that he "wakes 3-5 a.m." and "falls asleep after each dose of Mirapex." (Opp. S.M.F. ¶ 20.) Dr. Drasby instructed Mr. Faley to take only 0.5 mg. (Supp. S.M.F. ¶ 23.) Despite this instruction, Mr. Faley continued to take 1 mg. (Id. ¶ 25.) Mr. Faley informed Dr. Drasby at an appointment on June 4, 2008 that he was taking 1 mg. (Pis.' Addt'l S.M.F. If 15.) Dr. Drasby again instructed Mr. Faley to reduce his dose to 0.5 mg. (Id. ¶ 16.) However, Dr. Drasby continued to write a prescription for 1 mg so that Mr. Faley would not have to refill his prescription more frequently. (Supp. S.M.F. ¶ 24.) Dr. Drasby wrote a one-year prescription for 1 mg in June 2008, June 2009, and June 2010. (Pis.' Addt'l S.M.F. ¶¶ 17-18, 23.)

At an appointment on April 26, 2010, Mr. Faley again informed Dr. Drasby that he was taking 1 mg. (Supp. S.M.F. ¶ 38.) This time, Dr. Drasby advised Mr. Faley to continue taking 1 mg because it appeared to Dr. Drasby that Mr. Faley was doing well at that dose. (Id. ¶ 29, 48.) Dr. Drasby admits that Mr. Faley reported on April 26 that he "tired easily" and that fatigue was one of his main complaints. (Id. ¶¶ 40-41.) However, he asserts that Mr. Faley reported that he was not having any "somnolence or sedation." (Id. ¶ 39.) Plaintiffs dispute that Mr. Faley was doing well at the 1 mg dose and assert that Dr. Drasby wrote in his notes that fatigue was Mr. Faley's "over-riding complaint." (Opp. S.M.F. ¶ 39.) Plaintiffs further assert that Dr. Drasby discussed prescribing Mr. Faley a stimulant, which he declined. (Pis.' Addt'l S.M.F. ¶ 20.)

Approximately one week later, Mr. Faley called Dr. Drasby to report that he was feeling drowsy. (Supp. S.M.F. ¶ 49.) Dr. Drasby reminded Mr. Faley that he had experienced drowsiness at the 1 mg dose in the past and instructed Mr. Faley to return to the 0.5 mg dose. (Id. ¶ 50.) Dr. Drasby and Mr. Faley had no contact between this conversation and July 4, 2010. (Id. ¶ 52.)

On July 4, 2010, Mr. Faley struck Dr. William Dexter while Mr. Faley was driving. (Id. ¶ 69.) Dr. Dexter and a friend were riding bicycles single file along the edge of Route 113. (Pis.' Addt'l S.M.F. ¶¶ 2, 5.) Dr. Dexter suffered severe injuries, including multiple rib fractures, collapsed lungs, a torn rotator cuff, a fractured wrist, multiple small fractures in his neck and back, a fractured sacrum, a disarticulated pelvis, and a fractured right ankle. (Id. ¶ 7.) The parties dispute whether Mr. Faley's vehicle left his lane of travel. Dr. Drasby asserts that Mr. Faley did not leave his lane before, during, or after the accident. (Supp. S.M.F. ¶ 76.) Plaintiffs assert that the vehicle drifted before the accident and continued to drift afterward. (Opp. S.M.F. ¶ 76.)

The parties agree that neither Mr. Faley nor any member of Mr. Faley's family ever reported to Dr. Drasby that Mr. Faley was having difficulty driving. (Id. ¶ 65; Supp. S.M.F. ¶ 65.) They also agree that Mr. Faley never provided Dr. Drasby with a form from the Bureau of Motor Vehicles (BMV) regarding his Parkinson's disease. (Supp. S.M.F. 58; Opp. S.M.F. 58.) Dr. Drasby informs his patients that they will receive a form from the BMV asking if they have been diagnosed with Parkinson's disease, and that they should bring this form to his office, or to the office of their primary care physician, for completion. (Supp. S.M.F. 55.) After Dr. Drasby completes the form, the patient often is examined by neurologists at the direction of the BMV and undergoes road tests. (Id. ¶ 57.)

Mr. Faley's first appointment with Dr. Drasby after the accident occurred on August 26, 2010. (Id. ¶ 82.) At this appointment, Mr. Faley informed Dr. Drasby that he had continued to take 1 mg after his phone conversation with Dr. Drasby. (Id. ¶ 83.) Dr. Drasby asked Mr. Faley if he had felt drowsy before the accident, and Mr. Faley responded that he had not. (Id. ¶ 84.) Mr. Faley reported that he had no memory of seeing anyone in front of him while he was driving and that "the next thing he knew he heard a bump against the front of his car." (Id. ¶ 82.) Dr. Drasby told Mr. Faley that he might have had a Mirapex-induced "sleep attack, " which is a sudden onset of loss of awareness, without warning, comparable to an attack of narcolepsy. (Id. ¶¶ 86-88.) Dr. Drasby eliminated Mirapex from Mr. Faley's medication regimen at this appointment. (Id. ¶ 92.)

Dr. Drasby now asserts that the experience Mr. Faley described is "highly inconsistent" with a sleep attack. (Id. ¶ 89.) Dr. Drasby explains that he is now aware of evidence that contradicts the sleep attack theory, namely that Mr. Faley did not report loss of consciousness to the police, that his field of vision was limited by his eye pathology, and that he told the police he simply had not seen Dr. Dexter. (Id. ¶ 96.) Dr. Drasby further explains that he told Mr. Faley about the possibility of a sleep attack because he wanted to console Mr. Faley by giving him a reason to think he might not have been at fault. (Id. ¶ 88.) The parties agree that less than one percent of patients who take dopamine agonists suffer sleep attacks and that there is no evidence Mr. Faley had ever experienced a sleep attack before. (Id. ¶¶ 90-91.)

Mr. Faley next had an appointment with Dr. Drasby on September 16, 2010. (Pis.' Addt'l S.M.F. ¶ 24.) At this appointment, Dr. Drasby noted that Mr. Faley had had an "excellent response" to the elimination of Mirapex, and that his fatigue and drowsiness had improved. (Id.) Dr. Drasby continued ...


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