November 3, 2012

The Intersection of Medical Malpractice & Product Liability--the Meningitis Outbreak

by Levin & Perconti

The pain injections associated with the fungal meningitis outbreak have only been recalled for a little more than a month. However, hundreds have already been infected as a result and two dozen have died--including many seniors. All other products made around the same time by the involved company--the New England Compounding Center--have also been recalled. The facility itself has been completely shut down.

Also, the first lawsuit connected to the matter will likely be filed soon. That does not mean that all cases will proceed shortly afterward, and it does not even mean that all those affected by the incident have already sought out legal counsel. Because of the long incubation period for this rare type of meningitis, it may be awhile before some of those harmed know the full extent of their injuries. More information will undoubtedly also come to light in upcoming months that shed details on exactly what happened and what should have been done to prevent the harm.

However, considering the first legal actions will likely hit the court soon, some are already asking questions about some of the legal details of the cases and how the general framework might play out. At a basic level, questions are being asked about whether the medical caregivers who administered the drug (or the clinic where they worked) will face any liability for the harm caused by the contaminated products.

Medical Malpractice & Strict Liability
The potential liability of those who administered the drug will likely hinge on fine details regarding how the steroid itself is treated by the courts. In general, services provided by medical professionals are guided by medical negligence rules. In those cases the plaintiff will have to show that they suffered a harm that was caused by the professionals breaching a specific standard of care (acting negligently). It is unclear in these cases how difficult it will be for plaintiff to collect enough evidence to show that the medical professionals should have done something specific to prevent the development of the fungus (i.e. conduct outside investigations into the safety of the pain medication).

On the other hand, the drug itself might be deemed a product which was merely distributed by the doctor to the patient (or distributed in addition to be injected into the body as a service). If the doctor and medical clinic have a role in the distribution of the product, then product liability rules might apply instead of traditional negligence rules. This alters what the plaintiff is required to prove in the case to recover for their losses. Most notably, individual acts of negligence on the part of defendants is not relevant. The key issues instead are the harm caused by the product and the defendant's role in getting that product to the plaintiff. If strict liability rules apply, then it is more likely those affected by this fungal meningitis outbreak will be able to receive some compensation from the medical caregivers who gave them the drug and the clinic they received it from.

Legal Help in Illinois
At least three pain centers in Illinois gave out vials of this contaminated medication to patients. If you or someone you know was affected by this outbreak, be sure to get in touch with the lawyers at our office. We are investigating all of the details of the situation and working with harmed parties to ensure their legal rights are protected every step of the way. There is nothing to lose from reaching out, so please take a moment to contact us today.

See Our Related Blog Posts:
The Personal Stories Behind the Meningitis Outbreak

New Details on Past Problems at Pharmacy Behind Meningitis Outbreak