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Adams v. Allen12/19/1989
On July 30, 1986, Ruby and Preston Adams filed this medical malpractice action against Dr.
Albert Allen. They alleged that from 1974 until 1985 Dr. Allen negligently prescribed the painkillers Percodan and Percocet, failed to inform them of the side effects of the drugs, and fraudulently misrepresented the reasonableness of this course of treatment. As a result, they became addicted.
The Superior Court dismissed the claims for negligence and failure to inform, holding they were barred by the statute of limitation. It also dismissed the claim for fraudulent misrepresentation on the ground that the Adamses had not shown a genuine issue of material fact concerning the element of intentional wrongdoing or intent to deceive. The Adamses appeal.
We agree with the Superior Court's dismissal of the fraudulent misrepresentation claim, but we reverse in part the dismissal of the claims for negligence and failure to inform. We hold the statute of limitation does not bar the portion of these claims based on Dr. Allen's conduct in prescribing Percodan and Percocet for the Adamses within 3 years of the filing of their suit.
The affidavits and depositions relied upon by the Superior Court indicate that in 1973 Ruby Adams sought Dr. Allen's professional advice regarding lower back pain. He prescribed Percodan for her in January 1974. The written prescription stated the pills were to be taken every 6 to 8 hours as needed for pain, but Mrs. Adams testified that Dr. Allen orally advised her when she called complaining of flu symptoms that she could take the drug every hour without ill effects. Dr. Allen would give her two prescriptions for 100 tablets each when she came into the office for a checkup; he also gave some prescriptions over the phone. While she never told Dr. Allen that she was exceeding the written dosage recommendation, the documentary evidence shows that for many years Dr. Allen prescribed enough tablets to average a dosage of 5 to 6 pills per day.
Preston Adams begin using his wife's Percodan in 1974 for pain in his legs and feet. He later became a patient of Dr. Allen, and began obtaining prescriptions directly. Mr.
Adams does not recall Dr. Allen ever advising him of the side effects of Percodan. In contrast, Dr. Allen testified that he advised his patients of the possibility of drug dependency whenever he started prescribing Percodan. Mr. and Mrs. Adams were also prescribed Percodan on an occasional basis by Dr. William Fisher. Dr. Fisher advised Mr. Adams that Percodan was addictive. Neither Mr. nor Mrs. Adams told Drs. Fisher or Allen that they were receiving Percodan prescriptions from the other.
In 1975, Dr. Dale Peterson treated Mr. Adams for progressive impotency. He advised Mr. Adams that Percodan and alcohol might have something to do with his condition. Mr. Adams did not tell Dr. Peterson that he had been taking Percodan on a long-term basis.
In 1977, the couple's son, William Adams, first observed changes in his mother's behavior. He inventoried the drugs in his parents' possession, noting the Percodan which he knew from his law enforcement training to be a narcotic. When he expressed concern to his mother that Percodan was a dangerous drug, she responded that her doctor knew best. William called Dr. Fisher and told him he thought his mother was taking too much Percodan. He also attempted to call Dr. Allen, but apparently reached another doctor by the same last name. The Dr. Allen he contacted did not know what he was talking about.
In 1982, Mrs. Adams had a large portion of her stomach surgically removed. At this time, she admitted to Dr. Robert Rankin that she was "hooked"
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