Pharmaceutical drugs are supposed to make you feel better.
But what happens if they make you feel worse?
Thousands of drug-related product liability claims have been filed in the United States in recent years. Some examples of popular drugs that have been the subject of bad drug lawsuits include Accutane, Belviq, Lyrica, Zantac, Zoloft, and countless others.
In this article, we’ll take a closer look at pharmaceutical liability claims in South Carolina, including what you need to prove to recover damages.
What is a pharmaceutical liability claim?
Pharmaceutical drugs typically have minor side effects. Just because you experience one of these side effects doesn’t mean you can file a pharmaceutical liability claim.
To establish a pharmaceutical liability claim and recover damages, you need to prove that the drug you took was defective.
South Carolina law recognizes 3 types of defects:
- Manufacturing defect
- Design defect
- Marketing defect
Let’s take a closer look at each type of defect.
What is a manufacturing defect?
A defectively manufactured drug is one that—though properly designed—left the manufacturer in a condition other than intended. To put it another way, a manufacturing drug results from some mistake made during the manufacturing process.
A subsequent investigation found that the batch of teething medicine contained diethylene glycol, a dangerous industrial solvent that looks, smells, and tastes like glycerin, a safe sweetener commonly used in medicines and toothpaste.
Nigeria’s National Agency for Food, Drug Administration and Control (NAFDAC) traced the dangerous diethylene glycol to an unlicensed chemical dealer in Lagos, who sold the syrup to the maker of the teething medicine, Barewa Pharmaceuticals.
What is a design defect?
A defectively designed drug is one that failed to perform as safely as a reasonable person would expect, even when used as intended.
For example, if a drug frequently causes side effects that are unreasonably dangerous when taken as directed, the drug may suffer from a design defect.
A couple of studies found the presence of the chemical N-Nitrosodimethylamine (NDMA) in Zantac. NDMA is a human carcinogen (a substance that could cause cancer).
Whether or not the plaintiffs contracted cancer as a direct result of ingesting Zantac is unclear. If the drug does in fact cause cancer, it clearly suffers from a design defect.
Learn more about the status of Zantac lawsuits.
What is a marketing defect?
A marketing defect exists if the drug does not contain proper warnings or instructions.
After taking the drug, patients began filing lawsuits alleging that the drug caused them to engage in all sorts of risky behaviors, including gambling and shoplifting.
The Food and Drug Administration (FDA) conducted a review of Abilify and, in 2016, made an announcement stating that the medication’s label didn’t accurately reflect the “nature of the impulse-control risk.”
Learn more about the status of Abilify lawsuits.
What is a drug recall and how does it impact a pharmaceutical liability lawsuit?
A recall is a voluntary action taken by a company to remove a defective drug from the market. Drug recalls are characterized as follows:
- Class I: A dangerous or defective drug that could cause serious health problems or death.
- Class II: A drug that might cause a temporary health problem, or pose a slight threat of a serious nature.
- Class III: A drug that is unlikely to cause any adverse health reaction, but that violates FDA labeling and manufacturing laws.
Whether or not a drug is recalled has no bearing on whether you can file a lawsuit. Evidence that a drug has been recalled may, however, help support your claim that the drug is defective or unreasonably dangerous.
Possible defendants and the learned intermediary defense
In most pharmaceutical liability cases, the injured plaintiff sues 1 of 2 defendants:
- Manufacturers. A manufacturer is an individual or entity that designs, fabricates, produces, compounds, processes, or assembles a drug or its component parts before the sale to a customer.
- Sellers. A seller is a person engaged in the business of selling a drug, whether it’s for resale or for use or consumption.
One of the most common defenses raised by manufacturers in a drug-related product liability lawsuit is the “learned intermediary defense.”
Under the learned intermediary defense, manufacturers of certain medical products can rely on physicians to transmit their warnings and instructions. If the physician fails to warn the patient, the physician, rather than the manufacturer, is liable.
As a South Carolina court explained:
“[South Carolina] law imposes on manufacturers of drugs... a duty to warn that extends only to physicians. [It’s then up to the physician to use] their knowledge, training, and experience to provide the patient with such information as is deemed appropriate under the circumstances so that the patient can make an informed choice as to therapy.”
Statute of limitations in a South Carolina bad drug lawsuit
South Carolina limits the amount of time you have to file a lawsuit based on a defective drug. Typically, you have 3 years from the date you discover you were injured by a defective drug to file a lawsuit.
If you fail to file a lawsuit within the statute of limitations, your claim will be forever barred.
Damages available in a South Carolina pharmaceutical liability lawsuit
In South Carolina, you can recover the following damages in a pharmaceutical liability case:
- Economic damages include the monetary losses caused by your injury, including medical expenses and lost wages.
- Non-economic damages include the non-monetary losses caused by your injury, such as pain and suffering.
- Punitive damages are intended to punish the defendant and are only available in cases where the defendant acted intentionally or recklessly. Punitive damages are capped at $500,000, or 3 times the actual damages (whichever is greater).
3 FAQs about pharmaceutical liability claims
Have more questions?
Let’s see if we can answer them:
Where can I find more information about defective drug lawsuits?
It’s always a good idea to look up a drug on the FDA website to see if it has been recalled or if any other issues have been identified by the FDA.
How much can I recover if I file a pharmaceutical liability lawsuit?
A number of factors impact how much (if anything) you will recover if you file a pharmaceutical liability lawsuit. These factors include:
- The strength of your evidence (particularly the evidence proving that the drug you took caused your injury)
- The seriousness of your injury
- The length of your recovery
- The extent that your injury has caused daily life disruptions
- The extent that your injury has caused you emotional distress
- Whether or not you’re a sympathetic witness
- Whether or not the defendant is sympathetic
- Past jury verdicts in the jurisdiction where your case is filed
- Whether or not you retain an attorney
An experienced attorney will be able to discuss the strengths and weaknesses of your case and help manage your expectations.
How do I find a pharmaceutical liability attorney?
You can find a pharmaceutical liability attorney using our free online directory or by contacting the South Carolina Bar Association.
In the meantime, you can learn more about finding the right attorney for your case and preparing for your initial consultation here.
See our guide Choosing a personal injury attorney.