Every day, millions of people take prescriptions without ever reading the warnings or side effects. Some of these warnings or side effects may not have even been there at the time of consumption. If you have been injured by a pharmaceutical drug used, you may have a defective products claim.
Pharmaceutical-drug-based claims, such as Lipitor, are product liability claims that are similar to other defect product claims. However, pharmaceutical-related injury claims have a number of features that differ from product claims.
What are Pharmaceutical Product Liability Claims?
Product liability is a type of personal injury case that comes when a consumer is injured by a defective or dangerous product. The products are typically things that you can digest, such as prescription drugs and food items. Generally, product liability is considered a strict liability type or tort case, meaning the manufacturers of the drugs are liable for any defect in the drug, causing injury to the consumer.
Pharmaceutical product liability claims come in one of three basic variations:
- Improperly marketed pharmaceutical drugs – The marketing of pharmaceutical drugs refers to the warnings, instructions or recommendations concerning the use of the drug. This often includes injuries that are caused by failure to provide adequate or accurate warnings about a dangerous side effect. It can also be a failure to provide adequate instructions on the safe and appropriate use of the drug.
- Defectively manufactured pharmaceutical drugs – This product liability claim involves injuries caused by pharmaceutical drugs that haven’t been properly manufactured or have somehow been tainted. It could possibly be a result of an error at the manufacturing facility or the pharmacy where the drug was made or bottled. This could also happen because of 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.
- Pharmaceutical drugs with dangerous side effects – This category of claims includes injuries that are caused by pharmaceutical drugs that have side effects that result in injury. These cases sometimes involve drugs that have been on the market for a long time before it’s discovered to cause injury, such as the cholesterol-lowering drug, Lipitor, which may cause Type 2 Diabetes. Often times in these cases, victims may claim that the manufacturer knew about the possible side effect, but deliberately hiding it.
Drug Manufacturers Duty to Warn
Drug manufacturers have a duty to warn people about the side effects of a drug when the effects are known, but it is not expected to warn of unknown dangers. The manufacture will often discharge this duty by informing the patient’s prescribing physician or the pharmacist.
The drug manufacturer is the expert in this area, which means they should have a continuing knowledge regarding the products. If they find any potential adverse effects, they must take the steps to update the medical professionals on the issues.
The plaintiff is not always going to be able to identify the precise manufacturer or supplier of the defective product. This is often because too much time has passed and the evidence is no longer available. Those cases often come from damages that aren’t apparent until a child has grown.
Asbestos-exposure is another example of the time-lapse problem. In such cases, a variety of theories (i.e. negligence, breach of warranty, misrepresentation) are available to shift the burden to the potential defendants to prove they cannot be responsible. The defendants may also allocate the damages to a number of other potentially liable manufacturers.
Pliva vs. Mensing Trial
In 2011, the Supreme Court made a complicated ruling deciding that generic drug manufacturers are not liable for the injuries caused by their drug. One thing that made the decision so difficult is that 8 out of 10 prescriptions filled in the U.S. are for generic drugs. Part of the ruling is due to the fact that in order for a plaintiff to succeed in a lawsuit against a drug manufacturer, they must sue them under state laws that are much stricter than FDA regulations.
Because the FDA already approved the drugs for market, it preempts state law. The generic drug companies appealed being held responsible because they can’t comply with both state and federal laws and since they don’t set the makeup of the drug, the federal law, regulations by the FDA, must be upheld. The Supreme Court agreed, leaving an entire class of Americans without any legal recourse against the manufacturers of the drugs that injured them.
If you or a family member has been a injured due to pharmaceutical product liability, you deserve an experience product liability lawyer. At Balkin Law Group, we fight for your rights to get the compensation you deserve. Visit our site at www.hirethebull.com for more information or call us at 1-800-THE-BULL.