Death-by-Software Case May Come to U.S.By Berta Thayer | Posted 2005-04-06 Email Print
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Panama's top court won't hear an appeal in a case about radiation overdoses caused by glitches in X-ray machine software. So the families of victims may refile suits against a U.S. software firm in its home court.By Deborah Gage and Berta Ramona Thayer
The Panama Supreme Court has declined to hear an appeal on whether a lawsuit against Multidata Systems International, the American company whose software was implicated in the deaths of at least five patients at Panama's National Cancer Institute, can be heard in a Panamanian court.
The case, filed by survivors and families of the victims, may not be over, however. The decision may allow the plaintiffs to refile their case in St. Louis, where Multidata is headquartered.
An attorney for the families, Mark Sparks of Provost & Umphrey in Beaumont, Texas, calls the decision a victory. "If a U.S. product can injure a foreigner, it can injure an American, too," Sparks says. "Neither life outweighs the other."
If the families refile in the U.S. and win, such a decision could have broad implications for other U.S. companies that sell products in foreign countries, and for foreign companies that sell products in the U.S. (the manufacturer of the Cobalt-60 radiation machine used in Panama is Canadian). Both types of companies could be held liable for defective products by U.S. courts, according to Sparks.
One reason the families chose to file in the U.S. the first time is that Multidata's insurance policy excludes liability for any suit brought in a foreign country, and the company does not have the means to pay judgments otherwise, according to documents filed in the St. Louis court.
Multidata signed a consent decree with the Food and Drug Administration in May 2003 preventing it from manufacturing or selling products in the U.S., although it remained free to do business abroad.
By declining to hear the case on March 10, the Panama Supreme Court upheld a ruling issued by a Panama appeals court in April 2004. That ruling stated that although Panamanian courts do have jurisdiction over the case, they are pre-empted from hearing it because the families had already filed in the U.S.
The appeals in Panama were filed by a second defendant, MDS of Toronto. MDS owns Theratronics International Corp., which manufactured the Cobalt-60 machine.
Theratronics and its previous owner, Canada Development Investment Corp., are also defendants.
LACK OF COLLABORATION The families allege that the companies did not collaborate to perform joint systems engineering or failure-mode analysis on their products.
The families first filed their case in St. Louis County Circuit Court in October 2001. They charged wrongful death and personal injury due to negligence and product defects. The companies argued that the St. Louis court should dismiss the case because the deaths occurred in Panama.
Check out Baseline's Neal Award-winning coverage of the Panama incident:
In April 2003, Josefina Escalante Romero, the mother of one victim, did file a $10 million claim against the companies in a Panamanian trial court. Escalante Romero anticipated that her case would be dismissed. It was, after two days. One reason: lack of competency, because the case was already filed in the U.S. A second: lack of jurisdiction, because the companies were not registered to do business in Panama.
However, Escalante Romero's move did not strengthen the families' case in the U.S., as they had hoped.
In January 2004, St. Louis County Circuit Court Judge Emmett M. O'Brien dismissed the case, ruling the companies must first be given a chance to respond to the families' charges in a Panamanian court. Since then, the case has been caught between the Panamanian and U.S. judicial systems.
Sparks says he cannot give a timetable for refiling the case in the U.S. An attorney for Multidata, Matthew Jensen of Rasmussen, Willis, Dickey & Moore in Kansas City, Mo., declined to comment. An attorney for MDS did not return phone calls seeking comment. An attorney for CDIC could not be reached.
The Multidata case was the subject of a Baseline cover story ("We Did Nothing Wrong," March 2004, p. 32). In that report, a physicist at the National Cancer Institute, Olivia Saldaña, described how she attempted to use software from Multidata to calculate dosages.
Because the hospital's doctors were concerned about radiation side-effects, she read Multidata's manual and then devised a way to enter data into the software so that it would allow for the placement of five protective shields over each patient's body, instead of four. But the software was only designed to accept inputs and make calculations based on four or fewer shields. Describing the five shields as one large shield, which was Saldana's method, led to incorrect dosages being calculated and applied.
In November 2004, Saldaña and a co-worker, Alexis Alveo, were convicted in Panama of second-degree murder for the deaths of 12 patients and sentenced to four years in prison. They are appealing their convictions.
Twenty-eight patients were affected by the overdoses and at least 18 have since died. Multidata maintains that the physicists were negligent.