What to do when a defective drug makes its way into the marketplace and harms you or a loved one
When you take your medicine, you probably assume that it’s helping cure or contain what ails your. But what if the medication actually makes you worse?
Despite extensive federal and state regulations, unsafe drugs do make it into the public marketplace on occasion. When this happens, the person injured or made ill by the drug might be able to receive compensation by filing a product liability lawsuit.
Pharmaceutical-based product liability lawsuits (often called “bad drug lawsuits”) are similar to other personal injury cases, but there are some important differences, particularly in Texas.
Let’s take a look at bad drug lawsuits in the Lone Star State.
What is a bad drug lawsuit?
There are 3 types of bad drug lawsuits:
- Lawsuits based on drugs that have been improperly designed. If a drug is “unreasonably dangerous” even when used properly, the drug is improperly designed. Claims based on an improper design are rare because most unreasonably dangerous drugs aren’t approved by the United States Food & Drug Administration (FDA).
- Lawsuits based on drugs that have been manufactured incorrectly. Sometimes, a drug is properly designed, but something occurs during the manufacturing process that causes the drug to become unsafe. The most common example of this is a drug that becomes contaminated during the manufacturing process.
- Lawsuits based on drugs that have been improperly marketed. Drugs must come with proper warning labels that make consumers aware of potential side effects. When they don’t (or when an advertisement associated with the drug is misleading), a bad drug lawsuit may be appropriate. Importantly, Texas has adopted the learned intermediary doctrine. This means that, in certain cases, the manufacturer’s duty to warn consumers is limited to providing adequate warnings to the prescribing physician who then assumes the duty to pass the necessary information on to the consumer.
What injuries can result from taking a bad drug?
There are numerous negative side effects that a person can experience from taking a bad drug. These injuries range from minor to life-threatening and include:
- Heart attack
- High blood pressure
- Depression or other mental health issues
- Organ failure
If you suspect that a drug is making you worse instead of better, it’s important that you seek immediate medical attention.
It’s also important to document the medical care you receive, as well as your injuries, in order to improve your chances of success with any future lawsuit.
Post-Accident Journal Form
Sample accident journal/diary to help you document the effect on your daily life
Download in PDF format
Damages worksheet to track expenses for your injury claim (medical treatment, property damage, lost wages, prescriptions)
Download in PDF format
Who can be held liable for unsafe drugs?
Bad drugs cases are all a little different. Depending on the specific circumstances of your case, any of the following parties may be liable for your injuries:
- The drug manufacturer. Drug manufacturers may be held liable for manufacturing defects, design defects, and improper marketing.
- Your doctor. If your doctor provided the wrong medication or failed to provide you with necessary information (such as information regarding serious side effects), they may be liable for your injuries.
- Your pharmacy. Prescriptions are sometimes filled with the wrong medication or improper dosage. In these cases, the pharmacy (or even the pharmacists) may be liable.
- Testing laboratories. Drugs are subjected to several tests before reaching the marketplace. If one of these testing laboratories made a mistake and the drug should have never reached the marketplace, the laboratory may be liable for your injuries.
When can I file a bad drug lawsuit?
Texas has a 2-year statute of limitations for product liability claims, including bad drug claims. This means that you have 2 years from the date you discover your injury to file a lawsuit. If you fail to do so, your lawsuit will be dismissed and you won’t be able to receive any compensation.
The statute of limitations for medical malpractice claims in Texas is also 2 years. What’s more, medical malpractice claims can’t be filed more than 10 years from the date of the act giving rise to the claim. This means that, if you don’t discover your injury until 11 years after your doctor’s act of malpractice, you can’t file a medical malpractice lawsuit.
How can I prove my case?
A bad drug case can be brought under a theory of negligence or strict liability. Typically, a plaintiff will use the theory of strict liability because it’s easier to prove.
In a bad drug case based on negligence, the plaintiff must prove that:
- The defendant owed the plaintiff a duty of reasonable care (manufacturers owe a duty of care to all potential consumers)
- The defendant breached the duty of reasonable care owed to the plaintiff
- The defendant’s breach was the proximate cause of the plaintiff’s injuries
In a bad drug case based on strict liability, the plaintiff doesn’t need to prove that the defendant breached any sort of duty. Rather, the plaintiff only needs to show that:
- A pharmaceutical was sold in an “unreasonably dangerous” condition
- The unreasonably dangerous condition existed at the time the pharmaceutical left the defendant’s control
- The dangerous condition was the proximate cause of the plaintiff’s injuries
Once you’re able to prove the above conditions, you may receive compensation for any medical bills, pain and suffering, lost time at work, or emotional trauma associated with your injury.
Is the medication I’m taking subject to a lawsuit?
It’s possible the medication you’re currently taking is the subject of a class action lawsuit. Take a look at the list below, but keep in mind that new lawsuits are filed every day.
List of class action lawsuits for medications
Should I hire a pharmaceutical liability attorney?
Hiring a personal injury attorney can give you an advantage in your bad drug case. Large pharmaceutical companies have insurance companies and their own lawyers at their disposal. An attorney who understands the complexities of bad drug cases can help subpoena records, locate expert witnesses, negotiate with insurance companies and opposing counsel, and represent you during a trial if necessary.
If you’re having trouble locating an experienced product liability lawyer in Texas, consult our free online directory.
See our guide Choosing a personal injury attorney.