Unsafe Medication and Personal Injury Laws

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 What is a Personal Injury Claim?

When a plaintiff files a personal injury claim, they are claiming that they have sustained an injury, which may be physical, mental or both. In a personal injury claim, the plaintiff claims their injury or injuries were caused by an act or a failure to act by the defendant.

If the plaintiff prevails in their personal injury claim, they may be awarded money damages for personal injury. In certain cases, the events which caused the plaintiff’s injuries may also form the basis for criminal charges.

For example, if a defendant assaulted the plaintiff, they may face a civil lawsuit for the assault as well as criminal assault and battery charges.

What Kind of Injury Does a Personal Injury Claim Involve?

Personal injuries may harm a plaintiff’s physical health, emotional health, or both. Mental health injuries may include the emotional pain and anguish which was sustained as a result of the accident.

Physical injuries can involve injuries to:

  • Limbs;
  • Organs; or
  • Other parts of the body.

An injury which is sustained by a plaintiff does not have to manifest immediately, but may develop over a period of time. There are numerous types of accidents or events which may form the basis of a personal injury claim, including:

There are numerous different types of accidents which may occur that cause personal injury claims to arise. It can be helpful for an individual to review accident statistics so that they can be more prepared, which may help prevent an accident before it occurs.

What are Unsafe Medications?

An unsafe medication is a medication which poses a risk of harm to consumers or that is considered to be unreasonably dangerous. In an ideal situation, the manufacturer of a medication would fully research the nature and effect of any medication or drug prior to releasing it for consumer use.

It is important to keep in mind that just because a medication is approved by the Food and Drug Administration (FDA) does not always mean that the medication is absolutely safe. In addition, approval from the FDA does not shield a manufacturer from being liable for harm which is caused by the product.

Unsafe drugs, or unsafe medications are commonly associated with drug labeling lawsuits. High alert drugs or medications (HAMs) are medications which have an increased risk of causing significant harm when they are used in any way other than which they are exactly prescribed.

These medications are dangerous mostly due to the fact that a small change in the dose given or in the level of the drug in an individual’s blood may lead to a critical event. In addition, the adverse event which is caused by the error in administration of a HAM may be persistent, life-threatening, or, in some cases, permanent.

These adverse events may lead to:

  • Disability;
  • Hospitalization; or
  • Death.

The Institute for Safe Medication Practices has outlined 3 categories of high risk medications which are determined according to the setting in which they are used. The 3 categories of high risk medications include:

  • Medications that are high alert medications in community or ambulatory care settings;
  • Medications which are high alert medications in an acute care setting; and
  • Medications that are high alert medications in long-term care settings.

Common examples of high risk medications include:

  • Anticoagulants: Blood thinners, such as warfarin and heparin, are used to treat blood clots. As too much of an anticoagulant can be life-threatening, it is important to take only as much as is prescribed, and on a strictly regular dosing schedule;
  • Insulin: A prescribed treatment for diabetes;
  • Opiates and narcotics: OxyContin, hydrocodone, and methadone are opioids which carry a high risk of addiction. When taken in excess, these medications may result in death by overdose;
  • Injectable potassium chloride or phosphate concentrate: Used to treat electrolyte imbalance. These medications require monitoring and careful supervision for administration; and
  • Potassium and other electrolytes: Used to regulate electrolytes.

All of these medications have the potential to be life saving when they are correctly prescribed and administered strictly according to the prescription. If, however, they are not used as directed or are used incorrectly, the effects could be life-threatening.

The majority of losses from an unsafe medication can be recovered by filing a lawsuit against the company that manufactured the drug. Depending upon the nature of the plaintiff’s loss or injury, a claim may involve a number of different legal theories, such as:

Typically, legal recovery for a plaintiff’s losses will include a damages award that covers any expenses which were caused by the injury.

What are the Responsibilities of Drug Manufacturers to the Public?

In general the duties of a drug manufacturer mostly involve informing the public of any risks which may be associated with the drug. Pursuant to most federal and state personal injury laws, the manufacturer of a medication is required to:

  • Research and thoroughly understand the product’s dangers and side effects; and
  • Take steps to ensure that consumers as the public are well-informed regarding any possible risks or circumstances which may make the medication unsafe to consume.

For the majority of over-the-counter non-prescription medications, manufacturer warnings are typically conveyed using a proper warning label or an enclosure in the packaging. Prescription drugs, however, require the supervision of an intermediary individual, for example, a physician or specialty.

The health and safety standards may be different for prescription drugs than for over-the-counter drugs.

Can Doctors or Physicians be Held Liable for Drug Injuries?

Typically, a prescription medication does not pass directly from a manufacturer to a consumer. Instead, prescription medications are usually distributed using an intermediary, such as a physician. The physician will research the patient’s condition and determine which medication will be required for their treatment.

For a manufacturer of a prescription medication, they typically have a duty to warn the physician, but not the consumer. In many cases, as long as the manufacturing company informs the physician of the risks involved with the medication, they have fulfilled their duty to warn.

This means that the physician may be held liable, instead of the manufacturer, especially in cases were:

  • The physician prescribed the wrong type of medicine for the patient’s illness;
  • The physician prescribed a defective product or a product that is:
    • unsafe;
    • outdated; or
    • has been recalled; or
  • The doctor has made an error with regard to dosage or instructions.

What Types of Damages Can a Judge Award an Injured Plaintiff?

A plaintiff who is successful in their personal injury claim is entitled to compensatory damages. There are two categories of compensatory damages, general damages and special damages.

General damages are compensation for the injury itself, including:

  • Pain and suffering;
  • Mental anguish; and
  • Trauma.

General damages include compensation for issues which cannot be readily assigned a monetary value. To calculate these damages, the testimony of an expert, such as a physician or psychiatrist, is necessary to assign a monetary value.

Special damages are awarded to compensate the plaintiff for the specific consequences of the injury, including:

  • Medical expenses;
  • Loss of wages; and
  • Cost of rehabilitation, if required.

Do I Need a Lawyer for Unsafe Medication and Personal Injury Issues?

If you have any issues, questions, or concerns related to an unsafe medication, it may be helpful to consult with a personal injury lawyer for advice. It can be difficult to prove which party is responsible for your injury, as an unsafe medication claim often involves a complex chain of interaction between the manufacturer, the doctor, and the pharmacist.

Your lawyer can help determine which party is liable for your injuries and advise you of what type of legal remedies may be available in your case.

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