Blood Shield Statutes

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 What is a Defective Product?

Defective products are products which have imperfections that make them unreasonably dangerous to consumers. Typically, these imperfections are either in the design or manufacturing of the products and the dangerous nature of the imperfections may result in physical harm.

Claims that arise related to defective products typically fall into one of three categories, including:

Design defects mean that a product was manufactured correctly but that there was a defect or error in the design of the product which makes it dangerous to a consumer. These types of cases often involve a claim that the defendant did not use a reasonable design alternative which was economically feasible and was less dangerous.

Defective manufacturing means that a product was properly designed but an issue occurred during the manufacturing process which caused a flaw in the individual product. Because of this, the product is different, and more dangerous, than the other products next to it on the shelf.

With defective manufacturing, the product in question is considered dangerous beyond the expectation of the ordinary consumer. A company may initiate a product recall once they become aware of the possibility of the manufacturing defect.

All products are required to be accompanied by clear and complete warnings regarding any dangers which may not be immediately apparent. An inadequate warning may be considered a category of design defects if the consumer is not warned regarding the dangers of using the product.

For example, a prescription drug is required to including information regarding:

  • Drug interactions;
  • Side effects; and
  • Other warnings.

Can I Sue Because a Product is Faulty or Defective?

If an individual has suffered an injury as a result of a faulty or defective product, they may have a product liability claim. In order to prevail in this type of claim, a plaintiff will be required to show the following elements:

  • The individual sustained some type of injury of suffered some type of loss;
  • The product is defective;
  • The defect caused the plaintiff’s injury; and
  • The plaintiff was using the product in a manner in which it was intended to be used.

This may be difficult in certain claims because proving that a product has a defect may be difficult in cases where the product was damaged. For example, if an individual is claiming that the brakes on their vehicle were faulty because of a manufacturing defect, the claim may be difficult to prove if the vehicle was involved in a serious accident.

In addition, the plaintiff will be required to based their product liability claim on a certain legal theory of liability, which may include several options depending on the state, including:

  • Battery: This theory depends largely on what the defendant was aware of regarding the product. If the defendant was aware the product was dangerous and did not put the corresponding warning labels on it, then the defendant may be held liable for battery if the product causes injury;
  • Negligence: If it is reasonably foreseeable that a defective product could cause harm to a consumer, a negligence claim may be part of the lawsuit. The defendant has a duty of reasonable care to manufacture or sell products that are free of unknown risks and may be liable a breach of that duty of care caused injury;
  • Strict Liability: In strict liability cases, it does not matter whether the risk was reasonably foreseeable. The defendant will still be held liable if their product caused injury; and
  • Breach of warranty: In a breach of warranty claim, a plaintiff must show that a warranty applied to the product, and that the product did not meet the terms of that warranty;
    • There are different types of warranties which may apply in these types of cases, including:
      • Express warranties: Express warranties arise from promises. If the seller makes a promise about a product, whether through their words or actions, then an express warranty may be created;
      • Implied warranty of merchantability: To be considered merchantable, a product must reasonably conform to the expectations of an ordinary buyer. This implied warranty simply means that the product is of an acceptable quality and fit for its ordinary purpose; and
      • Implied warranty of fitness for a particular purpose: If the seller is aware that the buyer is purchasing a product for a particular purpose, and the buyer is relying on the judgment or expertise of the seller, an implied warranty of fitness may arise.

Are Class Action Lawsuits Available for Faulty or Defective Products?

In a case where a large number of individuals are affected or injured by the same defective product or products, they may be able to file a class action lawsuit. If the members of the group suffer the same types of injuries by the same products and the factual and legal questions in each case are the same, it may be more efficient for the injured parties to take part in a class action product liability case.

There are, however, several requirements and qualifications which must be met in class action cases. Because of this, it is important to consult with an attorney to determine what options are available and whether or not an individual should join an existing class action lawsuit.

What is a Blood Shield Statute?

Typically, a consumer will be able to sue for damages that are caused by a faulty product based on the legal theories of product liability or breach of warranty. States, however, have made certain exceptions for blood transfusions.

The majority of states have statutes which make strict liability or warranty theories inapplicable to blood transfusions. These statutes provide that medical personnel, hospitals, and blood banks will only be held liable if they failed to take reasonable steps to screen and inspect the blood and the defect which was found in the blood could not have been reasonably discovered.

If there is not a statute or regulation in a jurisdiction which applies to blood transfusions, the majority of courts have refused to apply strict liability to blood transfusions.

Why Do Blood Shield Statutes Exist?

Prior to the wide-scale availability of blood screening, blood transfusions were major causes of HIV infections. Numerous plaintiffs, or injured individuals, have filed lawsuits against individual doctors as well as hospitals under the legal theory of negligence.

A court will typically only hold a blood supplier liable if they did not follow the industry standards for screening. Therefore, if an individual contracts a disease which is not widely screened for, they may not be able to recover damages for their injuries.

Can I Recover at All?

If an agency was negligent in some other aspect of the blood transfusion, for example, failing to exercise reasonable care when selecting a blood donor, it may be held liable. It is helpful for an individual to review the applicable statutes in their state or consult with an attorney regarding their questions.

The blood shield statutes will vary by state as will the applicable standard of care. In addition, it is important to review the statute of limitations in the state.

Certain states provide that the statute of limitations begins to run after the transfusion, which may cause a long-latent disease to be exempt from a claim. Other states may provide that the statute of limitations begins running from the discovery of the disease or when the disease should reasonably been discovered.

Do I Need a Lawyer Experienced with Blood Shield Laws?

If you have any issues, questions, or concerns related to a blood transfusion injury in your state, it may be helpful to consult with a personal injury lawyer. Your lawyer can advise you regarding the applicable blood shield statute as well as the statute of limitations in your state.

In addition, your lawyer can help you determine whether the blood supplier was negligent. Your attorney can assist you with filing and claim as well as represent you in court when necessary.

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