What to Do If You’re Harmed by a Defective Drug

Defective drugs and pharmaceutical liability claims in Georgia

Drug companies aren’t our enemies. They produce life-saving medications that people take every day, and usually the benefits outweigh the risks. However, despite extensive testing and trials that can take years, or even decades, sometimes a drug will still have defects when it comes to market.

If you’re injured by a defective drug, you might experience a combination of physical side-effects, financial burden, and emotional trauma. A defective drug lawsuit falls under the legal category of product liability.

Who’s liable for defective drugs or medical equipment in Georgia?

The product liability for a pharmaceutical is complicated because it involves questions about the product’s supply chain. Liability could be attributed to one or more parties that include everyone from the drug manufacturer to your pharmacist.

When an injured person (the plaintiff) files a product liability suit, they have the burden to establish what company manufactured the defective item. A defective drug claim could have several defendants, including the:

• Manufacturer
• Testing lab
• Pharmaceutical sales representative
• Clinic or hospital
• Prescribing physician
• Pharmacy

Types of pharmaceutical cases

These are the three types of drug liability claims, and who the defendant(s) are for each varies:

1. Defective manufacturing. If the drug became tainted during manufacturing, if there was a labeling error, or if climate or other factors damaged the drug during the shipping process from the manufacturer to you or to the pharmacy, then you might have a case for defective manufacturing. Defendant: Manufacturer.
2. Dangerous side-effects. Drugs can be on the market and used by consumers for many years before anyone realizes that they’re responsible for some side-effects. For example, there are drugs that increase a patient’s likelihood of diabetes or stroke when used for years or decades. There are also drugs that can increase these (or other) risks when only taken for a short time, but the effects don’t appear in patients until many years later. Patients might bring a lawsuit claiming that the manufacturer knew the risks but concealed them from the public. Or, the suit could be because the manufacturer didn’t know the risks but should have become aware during the testing process. Defendants: Manufacturer, testing lab.
3. Improper marketing. “Marketing” isn’t just the ads you see on TV and in magazines. It also includes warnings or instructions for how to use a drug. When you see a commercial on TV for a drug, you always hear a disclaimer spoken very fast at the end, usually accompanied by small print at the the bottom of the screen. That’s how a pharmaceutical company “covers” itself by providing a list of the possible side-effects, interactions with other drugs, and other warnings. Defendants: Manufacturer, pharmaceutical sales representative, doctor, hospital, pharmacy.

Improper marketing is the drug defect lawsuit version of “failure to warn” in a regular product liability suit. In other words, you’re entitled to know the full range of possible risks (short- and long-term) and side-effects before you begin taking a drug, whether it’s over-the-counter or prescribed by your doctor. You’ve probably seen the paper insert with your medications that includes a lengthy list of side-effects and warnings.

That’s why there are so many possible defendants for an improper marketing or failure to warn pharmaceutical liability lawsuit. It’s the manufacturer’s responsibility to disclose any risks, possible interactions, or long-term effects to medical providers and sales reps.

The doctor is also responsible for knowing the correct way to use a drug, what it’s approved to treat, the correct dosage, and how it might interact with other conditions you have or drugs you’re taking. This also applies to a hospital or clinic if that’s where the drug is prescribed. Only a doctor can write a prescription, but if it’s not your personal doctor (maybe someone employed by a hospital or clinic), then that person bears the same responsibility for knowing your medical history and other information.

Finally, there’s liability on the pharmacy where you purchased the drug. The pharmacy has a duty to check any newly prescribed drug against what you’re already taking to ensure there won’t be interactions. The pharmacist is also responsible for fully informing you about risks or side-effects, along with the dosage, frequency, and any other relevant information about how to take a drug safely.

Pharmaceutical liability for devices and medical equipment

Pharmaceutical liability extends beyond drug defects. Medical implants, devices, and equipment are included as part of these lawsuits, and the same concepts apply. If you experienced a condition, disease, or illness that’s the result of a faulty medical device, you might be able to bring a pharmaceutical liability lawsuit.

Examples of major defective medical device lawsuits in recent years include:

• Transvaginal mesh implants
• Metal-on-metal hip implants
• Knee replacements
• Pacemakers

What to do if you suspect a defective drug or medical device

First, you or your attorney will need to prove that a drug was the cause of your harm or condition. If you suspect that you’re experiencing a condition or side-effect from a particular drug, your first stop is to get diagnosed by a doctor.

Some pharmaceutical liability cases arise from unavoidably unsafe products. Some drugs have known dangerous side-effects, even when manufactured correctly. Your doctor might warn you of the side-effects, but also inform you that the benefits outweigh the risks in your situation. That’s a discussion between you and your doctor, and if you were told appropriate safety warnings, then you likely aren’t able to make a pharmaceutical liability claim.

What if you experience a drug injury years after you took the drug?

For example, maybe you took a drug during pregnancy that had negative effects on your unborn child. However, those effects were not apparent or diagnosable until your child was several years old. Or maybe you took a drug for an ongoing condition like high cholesterol or blood pressure, and 20 years later you learn that it might have contributed to your diabetes.

The challenges for these pharmaceutical liability cases are:

• Proving the causal link between the drug and the condition
• Identifying the responsible parties so many years later (a manufacturer might no longer be operating, and it might be difficult to track down a prescribing doctor after years have passed)

The strict liability standard in Georgia

Georgia is a strict liability state, so the manufacturer is liable even if it didn’t know the product was defective. This is a less restrictive standard for a plaintiff to meet than a negligence standard. In a state that doesn’t have strict liability, the plaintiff needs to show that the manufacturer’s carelessness is the cause of the injury.

However, for a strict liability case in Georgia, you don’t need to prove that the manufacturer was careless. Instead, you can recover if these conditions exist:

• The product was “unreasonably dangerous” because of a defect in its design, manufacture, or shipping and handling
• The defect caused injury even though you used the product in the way it was intended to be used
• The product wasn’t substantially changed from its original condition

In other words, a strict liability claim focuses on the defective drug and not on the manufacturer’s level of fault.

How to find a Georgia pharmaceutical liability lawyer

If you’re considering a pharmaceutical liability lawsuit, visit the Enjuris personal injury guide for resources on a variety of physical and emotional injuries. Also, visit our law firm directory to find experienced personal injury lawyers in Georgia who are available to take your case.

There are often similarities between pharmaceutical liability claims and medical malpractice, so it’s important to consult with a knowledgeable lawyer who will advise you on the best legal options.