Rite Aid ordered to pay woman $250,000

THE BALTIMORE SUN

In what lawyers believe is the first case of its kind in Maryland, a Baltimore County jury ordered the Rite Aid Corp. yesterday to pay $250,000 to a woman who said she became permanently disabled after following incorrect advice on an information pamphlet enclosed with her Lyme disease antibiotic.

Although Baltimore County Circuit Judge John F. Fader II will review many of the lawsuit's complex legal issues at a hearing in August, and although the case will likely go on from there to the Court of Appeals, yesterday's verdict is at least a short-term victory for Ellen Levy Gray, 42, of Owings Mills, a former star athlete who now strains to play with her 3- and 5-year-old children.

"At least there's a monetary value on it," Levy Gray said yesterday. "It's not going to give me two years back. But it's something I can give to my kids."

In October 2000, an infectious disease specialist diagnosed Levy Gray with acute Lyme disease and prescribed her the antibiotic Doxycycline, a drug also used to treat anthrax and syphilis.

Levy Gray filled the prescription at the Rite Aid pharmacy on Tullamore Road in Timonium. Along with the antibiotic, the pharmacy gave Levy Gray patient information literature called a "Rite Advice" pamphlet.

That pamphlet advised Levy Gray to "take with food or milk if stomach upset occurs unless a doctor directs you otherwise," according to court papers. She followed the advice.

It was only after her symptoms persisted - muscle soreness and weakness, nausea, headaches and fatigue - that she spoke to her brother, a doctor, about how she was taking the drug with milk. He was shocked, she said, and told her to stop. Milk, he said, was known to inhibit the effects of Doxycycline.

According to Levy Gray's complaint, she went back to the Rite Aid and spoke with two pharmacists there. The two pharmacists, she said, explained "exactly how milk interferes with the bodily absorption of Doxycycline," agreed that the pamphlet was incorrect and said it should be changed.

But by that time, according to Levy Gray and medical experts who testified on her behalf, long-term damage had been done.

"Much like anthrax, in acute Lyme disease there is a 'window' where, to effectively counteract the effects of the disease, the antibiotic must be taken," Levy Gray's attorney Lloyd Byron Hopkins wrote in one motion. "When one falls outside this window, death results in anthrax [cases] and disability and relapsing Lyme disease results with acute Lyme disease."

Levy Gray said she cannot do the things that once were easy. She has constant pain in her ankles and feet, she said, and she drops things. She has trouble buttoning clothes.

"I can't run around with my kids," she said. "How do I tell [3 1/2 -year-old] Jordan I can't dance with her because Mommy's feet hurt?"

In their verdict, the jurors did not find Rite Aid negligent. In that, they seemed to agree with arguments made by James A. Rothschild, attorney for Rite Aid, that the pharmacy was not negligent in advising patients to take the drug with milk.

Rothschild had noted at trial that the U.S. Food and Drug Administration had similar literature regarding Doxycycline, in which it said the drug could be taken with milk to alleviate stomach pain.

He said it was the doctor's responsibility to advise patients how to take medication. Furthermore, he contested Levy Gray's claim that her ailments stemmed from taking the drug with milk. The jury awarded Levy Gray the $250,000 because it said the pharmacy had "breached express warranty," or had broken a sales promise, which is a commerce law violation that Rothschild argued shouldn't have been part of the case.

That is going to be one of the issues Rothschild and Hopkins will argue in August.

"Ms. Levy Gray, I know you understand some of the legal arguments you are caught up in," said Fader, the judge, after the jury had left the courtroom. "None of this diminishes the way all of us feel. We know you've been hurt very badly."

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