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When medicines fail and
You've seen those daytime TV commercials that air between Maury and Jerry Springer:
"Have you or someone you know suffered from a defective drug?"
These 30-second spots discuss the horrors of a given medication at a pace reserved for auctioneers. Tearing through the list of side effects, they end their speeches with some variation of, "Call us today for a free review of your case. Previous rewards are no guarantee of future performance."
Many people have no concept of what it's like to take a medication (or multiple medications) on a daily basis, but there are currently so many commercials for "bad drug lawsuits" out there that you'd think every medication was bad.
Medication Log Sheet
Printable daily medication log template helps you track your medicines and side effects
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However, the vast majority of medications are incredibly necessary for people to survive.
It's just that every now and again, a pill crops up that has improper labeling, was tainted during manufacturing, or its benefits don't outweigh the side effects (and those side effects were not necessarily disclosed to the public).
Types of prescription medication lawsuits
There are three main types of class action lawsuits against pharmaceutical companies:
1. Failure to warn/improper instructions on medications
In a drug lawsuit, a "failure to warn" is when the labeling on a medication bottle does not properly convey to the end consumer (i.e., the patient) what his or her instructions should be, and this results in mistreatment.
Sometimes medications are marketed for "off-label" uses, such as Cymbalta, an anti-depressant medication, being approved for the treatment of chronic pain.
This can lead to trouble for many medications, as aggressive marketing and sales can mean treating conditions that weren't considered by the manufacturer at all – like Seroquel's class action lawsuit for uses of the drug that weren't approved by the FDA. People were taking Seroquel, an anti-psychotic drug, for things like anger management issues and post-traumatic stress disorder.
Even children as young as 10 years old were using Seroquel, with side effects like high blood sugar, diabetes, neurological disorders and more.
2. Drug design defects
Bad drug design defects include dangerous side effects, such as nausea, dizziness, vertigo, vomiting, etc.
This is when the medication was manufactured correctly, but the side effects outweigh the potential benefit and cause harm to the end user.
3. Drug manufacturing defects
This is when the problems start right at the beginning. Perhaps the batch was tainted during the manufacturing process or something was mixed in that diluted the recipe, but the pill itself harmed the end user.
Who can be held liable in a bad drug lawsuit?
While overall these would be cases for negligence, these are specifically what are called "strict liability claims", which applies to products liability cases.
In products liability cases, this is when a defendant puts a product into the stream of commerce (in this case, a medication) and holds responsibility for whatever damages that product causes, no matter where it ends up and no matter who it harms.
Can I sue the pharmaceutical company?
Well, yes, you can. The manufacturer can be held liable. The problem is that these lawsuits take quite a long time, because monitoring the damage that these drugs cause can be over a span of months, if not years or even decades.
Since so many people take these medications, they often take the form of class action lawsuits in which many plaintiffs come together to sue a manufacturer at once.
Post-Accident Journal Form
Sample accident journal/diary to help you document the effect on your daily life
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When it comes to prescription drugs, Big Pharma often plays roulette with consumers’ health. In recent years the negligent actions of pharmaceutical companies are being called into question and lawsuits have been filed. These settlements are huge, even for some of the largest pharmaceutical manufacturers in the world. Find out more
List of class action lawsuits for medications
Wondering if a drug you are taking is the subject of a current lawsuit?
Courts don't like to have hundreds of individual plaintiffs for the same type of case, so they consolidate the cases and have one or more plaintiffs represent them all.
This is the current list of active medication lawsuits, and many of these cases have been dragging on for a very long time. The problem is that drug manufacturers have a lot of money at their disposal, and they will set up a lot of roadblocks in the form of depositions, independent medical exams, motions to dismiss, arguments and more.
Can I sue the testing laboratory?
In theory, yes.
This is part of the manufacturing defect claim and the testing laboratory should be included as defendants in any suit that you file.
There should be safeguards at multiple points of the manufacturing process. Under a strict liability products claim, the lab is responsible for their product at any point in the chain – including its final destination, which is in the hands of the end user.
Can I sue the pharmacy?
Your pharmacy is often the final line of defense between you and the medication that you take. If your pharmacist counseled you prior to taking the drug, then you probably should include the pharmacist as a defendant in a suit that you file.
Can I sue the doctor who prescribed the medication?
Anyone in the chain of distribution for a bad drug is potentially liable for your injuries.
As such, the doctor who prescribed your medication is most likely liable for the harm that was caused because of his or her failure to warn. This failure to warn could be regarding potential side effects or the lack of instructions about how to use the medication in a safe and effective way.
Can I sue the hospital or clinic where the doctor works?
This goes along with the chain of distribution.
Technically, it also falls under the concept of respondeat superior, or "let the employer answer."
The employer is responsible for the employee's actions during the scope of his employment. As such, the hospital or clinic may also be liable for any injuries that you sustained because of the defective medication.
Can I sue the pharmaceutical sales representative?
This one is a doozy.
Pharmaceutical sales representatives have a reputation for showing up with the latest drug (along with free samples and lunches) and spouting literature that they barely understand themselves. Doctors don't always have time to read up on the newest medications, so they'll ask the sales reps for advice. These reps sometimes don't even have a pharmaceutical background.
So, to answer the question, yes. If they recommended the medication that ended up injuring you, they can be sued as well.
Do the manufacturers and pharmacies have any defenses in bad drug lawsuits?
Drug manufacturers will attempt a host of different defenses when fighting class action suits. If one doesn't work, they will try another, like throwing spaghetti at the wall until it sticks.
Comparative fault/contributory negligence
Some states have comparative fault or contributory negligence, which means that if the plaintiff contributed in any way to his or her own injuries, that might bar recovery to some degree (or entirely).
Assumption of risk
When the plaintiff is aware of the risk involved in using a drug, uses the product anyway, and becomes injured as a result, that plaintiff can be prevented from recovering damages. This comes down to the plaintiff's state of mind and whether he clearly disregarded the danger of using the product.
If the plaintiff made a substantial change or modification to the product and that change caused the plaintiff's injury, the manufacturer will likely not be held liable because that modification was the direct cause of harm. However, if the manufacturer could predict that the consumer would change the product in that way, he might still be held liable.
Statute of limitations
If the statute of limitations has expired, then the manufacturer will not be held liable. Depending on the state, the plaintiff only has so long to file a claim. This can be very difficult in defective drug cases because the plaintiff doesn't notice a problem for months or years.
The statute of limitations begins to toll when the plaintiff reasonably knew or should have known there was a problem. This is called the "discovery rule."
Finding an attorney who is well versed in defective drugs is difficult because it is quite the niche in products liability law. If you are in need of one, consider speaking with someone in the Enjuris law firm directory – they will be able to point you in the right direction.
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