Today, the Supreme Court issued a ruling that the Wyeth pharmaceutical company is liable for injuries sustained to a patient when a drug was improperly administered despite a warning explicitly called out on the label.  It wasn’t even a close vote (6-3) nor was it a new drug.  Here are the details per the NY Times.  The patient, Diana Levine, went to a clinic in 2000 with migraine pain for a shot of Demerol.  As part of this treatment, the clinic also prescribed Phenergan for nausea.  The Wyeth drug Phenergan has been in use since it was approved in 1955, but if misused, it has a horrendous side effect.  Contact with arterial blood can, according to the warning on the label, cause “gangrene requiring amputation”!  That is what happened in this case.  The clinic improperly administered the drug, accidently injecting it into an artery instead of the target vein and the patient eventually lost her arm.  So how is Wyeth liable?  If you have a drug on the market for half a century with 200 million successful uses and a warning on the label that details out the risk, what more must you do?  The Vermont jury that heard the case said that the label could have been more explicit or banned injection completely.  So I feel for Ms. Levine (who also settled a case for $700,000 against the clinic), but what is the responsibility of Wyeth here?  This is not a drug that you buy over the counter at Rite Aid.  You would only expect it to be used in a hospital or clinic setting and it would be administered (as it was in this case) by medical professionals.  Administering the drug by intermuscular injection or IV is supposed to be very safe.  The warning is spectacularly specific.

Ricardo de los Santos Mora, a native of the Dominican Republic, entered the United States in 1991.  The following year, he was arrested by New York City police and charged with attempted robbery.  As set forth in the appellate court opinion, de los Santos Mora:

did not speak English at the time of his arrest, and the arresting officers did not speak Spanish. He was interrogated without an interpreter present, although he told police in Spanish that he did not understand and wanted to speak with somebody in Spanish. After appearing before a judge, plaintiff was appointed counsel who did not speak Spanish. Plaintiff was then, according to his allegations, “coerced into taking a plea without the benefit of an interpreter.” He was sentenced to six months’ incarceration and five years’ probation.

Vienna: More photogenic than the Vienna Convention

And thus began de los Santos Mora’s strange odyssey through the American legal system, a journey that will end some time during the recently opened Supreme Court term.  For de los Santos Mora, a citizen of the Dominican Republic, may have had the right under the Vienna Convention on Consular Relations to be advised by the police at the time of his arrest that he could have requested assistance from the Dominican consulate.  Or maybe not.  Or maybe he had that right, but the courts can’t do anything about it if local authorities ignore those rights.

First, some background: the US, along with a bunch of other countries, entered into the Vienna Convention, which, in Article 36, requires signatory states to inform arrested or imprisoned foreign nationals that they have the right to contact their own consular officials.  Under the constitution, treaties have the same force as federal statutes, which, pursuant to the supremacy clause, overrule any inconsistent state laws.  Thus, the states are required, in theory, to abide by the Vienna Convention.