Prescription drugs can cause injuries, even to people who are following a doctor’s orders in taking the drugs. In some cases, this is because the drug has a manufacturing defect. In other cases, this is because a properly manufactured drug has serious side effects about which the consumer was not warned. Everyone in the chain of distribution of the prescription drug may potentially be liable for injuries caused by them, including the manufacturer, a consultant that works on testing the drug, sales representatives or distributors, a pharmacy, a hospital, or a doctor or nurse. If you suffer damages due to prescription drugs, you may be able to bring a products liability lawsuit.
Prescription drug defects may involve both products liability and medical malpractice concerns.
In some cases, a doctor or hospital may be liable for your injuries. You may have both a products liability claim as well as a medical malpractice claim. In many states, due to tort reform, there are several actions you must take before filing a medical malpractice suit. If you suffer injuries or seriously damaging side effects because of a prescription drug, it would be beneficial to consult a local attorney who is experienced in both products liability and medical malpractice claims so that you can properly bring both types of claims and recover the appropriate damages.
Types of Liability Related to Prescription Drugs
In general, products liability claims are divided into three types: manufacturing defects, design defects, and failure to warn (also known as marketing defects). A batch of prescription drugs may be improperly manufactured or become tainted after manufacturing. The error resulting in a manufacturing defect may happen at the factory, or it may happen because it is improperly compounded at the pharmacy.
Most manufacturing defect claims are strict liability claims. This means that you will only need to prove a defect, causation, and damages. Suppose, for example, that your child has acid reflux and needs a specially compounded medication. The compounding pharmacist makes an error in proportions, and because of that error your child becomes gravely sick. In that case, you can sue the pharmacist and may be able to recover compensation.
Manufacturers have a duty to continually monitor a drug for issues. If a problem arises, the manufacturer or the FDA may initiate a recall.
In some cases, prescription drugs have unreasonably dangerous side effects. These may be treated as design defect claims or failure to warn claims. In design defect claims, all the prescription drugs will have the defect. A failure to warn claim can vary from consumer to consumer. For example, a sales representative may be tasked with providing certain written warnings in connection with a pharmaceutical drug, and he or she may forget to provide the warnings in a few instances. Only the consumers who were not warned would have a claim.
In some cases, manufacturers are aware of long-term side effects of prescription drugs that are unreasonably dangerous. For example, it is alleged that certain antipsychotics cause gynecomastia, the swelling of breast tissue in boys or men, and that manufacturers were aware of that risk but marketed the drug to children. In those cases, plaintiffs may sue under both a design defect and a failure to warn theory. If the plaintiffs can prove that the manufacturer knew of this risk and concealed it, they may be able to recover punitive damages.
In some cases, a prescription drug causes relatively minor injuries. If the manufacturer failed to warn of certain side effects, but your injuries are relatively minor, you may want to file a class action suit, rather than an individual lawsuit. Individual lawsuits are expensive, and an attorney may not take a personal injury case if the injuries are too minor to be worth the trouble of suing.