By: Gerald S. Leeseberg, Esq.
One of the most fascinating, and tragic, cases I have ever worked on [Legge vs. Leess] involved the deaths of twin three year olds at home the evening following tonsillectomies/adenoidectomies for sleep APNEA, done as outpatient surgery. The central issue in the case involved a claim by the defense that the boys had an unknown genetic mutation that impaired their ability to metabolize codeine into morphine, since they were found to have elevated levels of codeine on autopsy. (Suspicions that they were intentionally or accidentally overdosed by mom were also investigated, and rejected.) The medical profession and pharmaceutical industry are just now having increased awareness of the effect that unique, individual metabolization has on the efficacy of and safety of medications. The defense trumpeted an article in a German medical journal titled “Deaths of twin 3 year olds due to codeine toxicity”, and the defense expert toxicologist/pharmacologist had written a case report on my clients’ death for inclusion in a medical text book ascribing their deaths to this genetic mutation and impaired metabolization. We alleged the boys suffered from a well-known complication following airway surgeries, due to swelling and physiological collapse of the soft tissues, and had they been kept overnight – as mom wanted but the insurance company refused to authorize – pulse oximetry monitoring would have detected the respiratory depression [regardless of the cause] and allowed nursing personnel to resuscitate the boys. We were able to disprove the defense theory (and forced the defense expert to retract his manuscript), because the boys genetic mutation resulted in them being “impaired” metabolizers of codeine. This did, in fact, account for the accumulation of “toxic” levels of codeine in their blood, but the central flaw in the defense theory is that this impaired metabolization actually was protective against respiratory depression for this simple reason: codeine is metabolized into morphine, which has a 10 fold increased respiratory depressant effect on the respiratory system. While accumulated codeine may reach what is considered “toxic” levels, there is absolutely no proof in the medical literature that having elevated blood levels of codeine has any adverse physiological effect on a person [absent a concomitant, resulting increase in morphine]; in other words,absent an overdose of codeine. It was one of the most fascinating, difficult, complex and tragic cases I have ever worked on. After the verdict, I actually worked with the defense expert to modify his manuscript to accurately describe what happened to these boys, in order to help educate the medical profession. At the same time, we basically forced the defense experts to acknowledge that their opinions as to the pediatric otolaryngology “standard of care” was in reality dictated by the insurance industry’s refusal to authorize payment for in-patient surgeries on children three years and over, despite the fact that the risk of airway collapse was only reduced a miniscule amount before and after a child’s third birth date.