Republished with Permission © 2009 Nolo.
Learn the special features of defective product claims involving pharmaceutical drugs.
If you have been injured by a drug you used, you may have a defective products claim. Drug-based product liability claims are similar to other defective product claims, but pharmaceutical-related injury claims have a number of special features, which are discussed below. (To familiarize yourself with the basics of defective products claims, read Nolo's article Product Liability FAQ.)
Drug-related product liability claims come in three basic varieties: claims based on defectively manufactured drugs; drugs with dangerous side effects (even though properly manufactured); and improperly marketed drugs. (These parallel the three categories of defective product claims in general.
Defectively manufactured drugs. This category of claims involves injuries caused by drugs that have been improperly manufactured or have somehow become tainted. This may be the result of an error at the manufacturing facility or the pharmacy where the drug was made or bottled, or a problem that occurs during shipping, or an error in labeling -- in other words, any situation in which a mistake is made at any point between the factory and the place you receive the drug.
Drugs with dangerous side effects. This category of claims involves drugs that, although properly manufactured, have side effects that result in injury. These cases sometimes involve drugs that have been on the market for a long time before it is discovered that they increase the risk of a certain type of injury, such as heart attacks. In some cases, the victims may claim that the manufacturer knew of the danger but deliberately concealed it. If the victims can prove this, they will get more money in the form of punitivedamages.
Improperly marketed drugs. The "marketing" of a drug refers to the warnings, instructions, or recommendations concerning the use of that drug. This category often involves injuries caused by a failure to provide adequate or accurate warnings regarding a dangerous side effect or a failure to provide adequate instructions regarding the safe and appropriate use of the drug. The "bad advice" may have been given by the manufacturer or by a doctor, pharmacist, sales rep, or some other medical provider.
Keep in mind that your defective product lawsuit may include a combination of claims. For example, a claim based on a drug with a dangerous side effect may be coupled with a claim based on the failure to warn of that side effect. Each different type of claim may net a different subset of defendants (for instance, the manufacturer and the pharmacist -- see below).
To make sure you include all the potential defendants in your drug-related products liability claim, you should consider everyone in the "chain of distribution" of a drug -- that is, the path the drug takes from the manufacturer to the consumer.
Manufacturer. Pharmaceutical manufacturers are typically large companies, due to the huge market for pharmaceutical drugs and the technical challenges involved in developing new drugs. This is generally good news if you're seeking compensation for your injuries, although it is also true that these companies inevitably retain teams of high-priced lawyers to defend such cases.
Testing laboratory. The drug that injured you may have worked its way through an elaborate series of tests on its way to the market, and you should include any of these testing laboratories as defendants in yourcomplaint, especially if they are independent of the manufacturer.
Pharmaceutical sales representative. Drug companies often make use of pharmaceutical "sales reps" who meet with doctors and other members of the medical community to tout the latest drug and make recommendations regarding its uses. Such representatives may beliable if they recommended the drug that injured you.
Doctor. The doctors who prescribed the drug that injured you may also be liable for your injuries because they are part of the chain of distribution of the drug. The doctors may also be liable based on their failure to warn you about potential side effects or to provide adequate instructions regarding the proper use of the drug.
Hospital or clinic. Any company, including a hospital or a clinic, that was part of the chain of distribution between the manufacturer of the drug and you may be liable for your injuries.
Pharmacy. Your pharmacy is often the final point in the chain of distribution of a drug from the manufacturer to you. The pharmacist's counseling regarding use of the drug that injured you may constitute an additional basis for the pharmacy's liability.
In any case in which you are suing a doctor or a hospital in connection with an injury caused by a drug you were given, you may have a claim for medicalmalpractice in addition to the defective product liability claim.
The legal basis for a medical malpractice claim is somewhat different from a defective product claim.
Fortunately, you don't have to choose only one type of claim. As long as they have a reasonable legal basis, you should include every available type of legal claim in your complaint.
Proving Your Claim You will have to prove three things in order to win your lawsuit:
- you were injured
- the drug was defective or improperly marketed (including having unreasonably dangerous side effects that you were not warned about), and
- the defect or improper marketing was the cause of your injury.
If you are claiming that the side effects of the drug you took were dangerous, keep in mind that many drugs are known to carry serious risks. As long as you were properly advised of those risks and you and your doctors decided the risks were worth taking in view of your condition, you probably won't have much of a lawsuit if you suffer serious side effects.
The answer to this very important question depends on state law. Every state sets certain time limits, called the "statute of limitations," on bringing product liability claims. Be sure to find out the statute of limitation in the state where you are bringing your claim.
As with any personal injury lawsuit, file your lawsuit as soon as possible, or at a minimum, make sure you know the deadline.
If you have been injured by a commonly prescribed drug, you may be only one of a large number of people who have been similarly injured. In such cases, you may be able to band together and file a class action lawsuit.
In some cases, a class action may already have been filed in connection with the drug that injured you, and you may have the option of joining that already-existing lawsuit. Joining an existing class action has several advantages:
- the lawyers for the class, who may have considerable experience and expertise in bringing big cases against big companies, will become your lawyers as well
- there will likely be little or no upfront cost to you, and
- you will not have to sort out potentially complex legal issues, such as where to file your claim.
You also have the option of not joining an existing class action and bringing your own lawsuit instead. This may be appropriate if the nature of your injuries are substantially different from the injuries of other people in the class action, or if there are special circumstances in your case.
Consider consulting with a lawyer to find out if there is an already-existing class action concerning the drug that injured you, and if so, whether it is advisable for you to join that class action.(If there is an already-existing class action, consider contacting the lawyers for the class directly; they will likely be very interested in talking with you.) Such initial consultations are usually free of charge.