Science and Law
13th November 2012

Meningitis Product Liability Litigation: Definition of Injection?

The CDC reports that the multi-state meningitis outbreak linked to tainted steroid injections have left over 30 dead and over 400 infected.

Meningitis Product Liability Litigation: Definition of Injection?
The CDC reports that the multi-state meningitis outbreak linked to tainted steroid injections have left over 30 dead and over 400 infected. Across the country, litigation is taking shape against not only New England Compounding Center, the drug-mixing pharmacy linked to the contaminated lots, but also against physicians and clinics.  However, the success of these latter suits may hinge upon whether judges decide that the tainted injections are subject to product liability or medical malpractice laws.

The definition of an injection may well be decided in the judicial arena.  If the courts decided that the injections were products that were sold, hospitals and doctors could be sued for product liability and held responsible regardless of intent to harm.  If the courts decide that the injections were a service, plaintiffs likely would face the tougher task of showing negligence under medical malpractice laws.

 

Medical records may also inform product liability litigation (for example, whether the product and the service were billed separately or together).  In some states, doctors are protected from strict liability standards, and some states impose caps on damages for such claims.  In terms of medical malpractice, personal injury attorney Fred Thompson of Motley Rice was quoted as stating, “The question will be whether the doctor or hospital failed to investigate the competence and safety of the steroids, and you’ll have to put some flesh on those bones”.

Doctors and hospitals may not be the only defendants. As Andrew Meyer, a personal injury attorney at Lubin & Meyer, has commented, everyone in the supply chain, from suppliers to compounders to distributors, could face litigation.

Counsel for New England Compounding Center has been active in federal court defending the company against a mounting number of lawsuits and investigations.  Chief pharmacist and co-owner, Barry Cadden, has been subpoenaed by the House of Representatives Energy and Commerce Committee to appear before a congressional committee after declining to appear voluntarily.  The company’s actions in the state courts remain to be seen.

New England Compounding Center is a relatively small Massachusetts-based company.  With an untold number of impending suits being filed and the limitations of the company’s assets, it is likely that plaintiffs and legal experts will make a push toward seeking out more well-insured defendants.

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