Author: Jon Merz
Date: 04-09-04 15:03
Source: Seattle Times
URL: http://seattletimes.nwsource.com/html/localnews/2001888551_hutch25m.html
Date published: April 9th 2004
From Haavi Morreim:
Friday, April 09, 2004, 07:31 A.M. Pacific
Jury finds Hutch not negligent in 4 deaths
By David Heath and Luke Timmerman
Seattle Times staff reporters
A jury yesterday decided in favor of the Fred Hutchinson Cancer Research
Center and against four people who sued the center in the deaths of their
spouses in a medical experiment there 20 years ago.
However, the jury found "The Hutch" negligent in the death of a fifth
patient, 45-year-old David Yingling, whose donor bone marrow was lost in a
laboratory mishap. Jurors awarded more than $1 million to his family.
The jury concluded that all five patients gave informed consent when
enrolling in the experiment known as Protocol 126, and that the cancer
center was not negligent in four of the five deaths.
The families failed to prove their case, jurors said, adding that a
"reasonably prudent" patient would likely have enrolled in Protocol 126,
given what was known at the time.
"I can see the patients' side, and I can see where they are coming from, but
they didn't make the case," said juror Juanita Kirschnick of Burien.
Jurors deliberated for six days after listening to eight weeks of testimony
in a Seattle courtroom. After the verdict was read, the three doctors who
were sued — Nobel laureate E. Donnall Thomas, Paul Martin and John Hansen —
hugged family and friends.
The Hutch's attorney said doctors had mixed feelings.
"These people came to the center with a chance for life from a bone-marrow
transplant, and unfortunately they did not survive," attorney Bill Leedom
said. "It was clear that the jurors felt a reasonably prudent patient, given
what was known at the time, would have chosen Protocol 126 as their last
chance at life."
Leedom said the verdict sends two messages to those doing clinical research.
"This says to medical researchers that yes, it is the right thing to do
research, to try to cure fatal diseases. It also says that you have to get
the informed consent of patients before you try to enroll them."
The lone plaintiff in attendance fought back tears.
"I'm so disappointed," said Peggy Draheim, whose husband John, a Navy
cardiologist from Bremerton, died in the experiment.
Thomas, the only doctor to comment, expressed relief, saying he was ready to
get back to work.
Protocol 126 had one of the worst mortality rates of any experiment at The
Hutch, according to testimony, with at least 83 of 85 patients dying of
various causes. The protocol was a series of experiments that ran from 1981
to 1993. The lawsuit involved two versions of the experiment in 1983 and
1984.
The Hutch discovered that the experimental procedure used in Protocol 126
seemed to reduce the severity of graft-versus-host disease, a potentially
fatal complication in bone-marrow transplants. But it dramatically increased
graft failures, a fatal complication that occurs rarely in conventional
bone-marrow transplants.
All five of the patients in the lawsuit died of graft failure. Their
families argued that The Hutch didn't fully explain the risks to them or
take reasonably prudent measures to protect them from harm.
Tom Dreiling, an attorney for the families, said he was shocked by the
verdict.
Although he said the jury was intelligent and thoughtful, Dreiling said, "I
can't quite believe that 12 reasonable people would reach this conclusion."
Marian Dagosto, a medical-school professor whose husband, Paul Mahler, died
in the experiment, said in a phone interview, "I'm certainly disappointed at
the verdict. I think it (the lawsuit) was still a very worthwhile
experience. Hopefully this will raise awareness of the treatment of research
subjects."
The families filed their lawsuit three years ago after The Seattle Times
published a series called "Uninformed Consent: What patients at 'The Hutch'
weren't told about the experiments in which they died."
In explaining the verdict, juror Darrell Plank of Bellevue said the judge's
instructions to the jury were important. They said that even if jurors
determined a material fact was not told to a patient, they had to decide
whether that fact would have changed the patient's decision to enroll in the
experiment.
"Even if they didn't have informed consent, would a prudent patient have
decided differently?" Plank said.
The jury foreman, 32-year-old Kyle Hurst of Seattle, said the consent form
for Protocol 126 was "really shoddy" but that The Hutch made up for that
with other forms given to patients and in meetings between doctors and
patients.
He said the most compelling argument made by the families was that the
doctors owned shares of stock in a company whose antibodies they were
testing in Protocol 126. But midway through the trial, the judge threw out
the fraud count against The Hutch, ruling that the plaintiffs had failed to
prove a financial conflict. The judge said the testimony of the plaintiff's
expert witness on financial conflicts was not persuasive.
Hurst said removing the conflict-of-interest argument weakened the
plaintiffs' case. Other jurors said they thought the doctors had good
intentions.
"I don't think there was an evil plot to enroll patients in some evil
protocol," said Mary Palmer, a juror from Shoreline.
Before the trial began, Superior Court Judge Douglas McBroom ruled The Hutch
was negligent for a laboratory mishap in which most of the bone marrow to be
transplanted into Yingling was lost. Jurors concluded that the mishap
contributed to Yingling's death.
There are 10 more cases pending against The Hutch related to Protocol 126,
but The Hutch's attorney said, without elaborating, that because of
yesterday's verdict, he believes those cases will be resolved.
David Heath: 206-464-2136 or dheath@seattletimes.com.
Luke Timmerman: 206-515-5644 or ltimmerman@seattletimes.com
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