Success of Rare Fungal Meningitis Suits May Hinge on a Single Word

As the death toll from the national meningitis outbreak continues to climb, victims have begun suing clinics and physicians that injected them with contaminated steroid shots. As a Reuters article revealed, the success of these lawsuits may depend on the judges’ decision as to whether the injections are subject to medical malpractice or product liability laws.

The New England Compounding Pharmacy (NECC), which was linked to the outbreak, and its executives already face lawsuits pertaining to the shots. However, it is reported that because of the comparatively small size of the Massachusetts pharmacy, patients who contracted meningitis are starting to sue better-insured defendants.

Lawsuits of this nature would depend on whether courts classify the contaminated injections as items that were sold. If such is the case, physicians and hospitals may be sued for product liability and held accountable irrespective of intent to harm. Most state product liability laws maintain these stringent standards. If courts define injection as a service, the claimant would have to prove negligence under medical malpractice laws.

In one New Jersey case pertaining to meningitis, claimants blamed the physicians for negligence but desired to invoke strict liability for the clinics. In other words, there was a possibility that the facility would be held accountable for selling a faulty product even if they were not aware of the fault.

In order to develop a case under the permissible standard of stringent product liability, claimants’ attorneys may go through their clients’ medical bills. If a bill states separate prices for the steroid and the injection, a plaintiff could assert that the steroid was a sold product. Supporting that argument may be more difficult if physicians do not itemize or only bill for the service.

The latest death toll from fungal meningitis is 29 and so far, 368 cases were reported. Patients in states including Tennessee, Minnesota and Michigan sued the compounding pharmacy.

People are not always permitted to put forth product liability claims against hospitals or physicians. In certain states, physicians are kept safe from strict liability standards. Certain states enforce limits on damages for such claims. Caps on damages can discourage litigation.

Compensatory damages that cover a plaintiff’s monetary loss is often modest. However, plaintiffs usually try to secure punitive damages which are intended to penalize wrongdoers, and are much higher. Punitive damages can be secured only in extreme cases most of the time.

Outcomes of lawsuits may differ since these are likely to be filed in multiple states. Plaintiffs may submit claims for both medical malpractice and product liability in the hope that either one or both will stick.

Furthermore, physicians and hospitals may not be the sole defendants. All involved in the supply chain could be subject to litigation.

Medication errors are another type of medical malpractice. A recent ScienceDaily article revealed research that showed in spite of electronic medical records, prescriptions of antiretroviral drugs for hospitalized HIV-positive patients are still commonplace. The results of three studies imply that a combination of EMR and more clinical education would help to considerably reduce medical errors.

Medical errors and preventable medical mistakes are problems that need to be curbed. If you or someone close to you was a victim of of a medical mistake, a Chicago medical malpractice attorney can help you get the compensation you are entitled to.