FindLaw KnowledgeBasePublished: 2012-11-30
A meningitis outbreak tied to tainted steroid shots that has sickened hundreds and left thousands of people at risk is likely to have sweeping legal effects. A month after a pharmaceutical compounding company recalled its products, more than 375 people had been infected with the rare and hard-to-treat illness, and 25 were killed. An estimated 14,000 people were believed at risk in what has been called the worst public health disaster since the 1930s.
Patients who received the injections, usually given for back pain, have to undergo painful tests for fungal meningitis and potentially painful treatments with medications that could require hospitalization. They and others who are harmed by the outbreak – including those in Cincinnati – may be able to seek compensation for their harm.
Who can they hold accountable?
Producer of tainted steroids a likely defendant
The most likely defendant is the pharmaceutical company that manufactured the products, the New England Compounding Center. Evidence against the company, which has issued a drug recall and suspended operations, is mounting. A Food and Drug Administration (FDA) investigation after the outbreak began turned up health hazards that included greenish-yellow residue on sterilization equipment, surfaces coated with mold and other safety problems. The company apparently knew about the problems, but had not taken action.
Within a few weeks of the outbreak’s announcement, at least a dozen patients who were injected with tainted steroids had filed claims accusing the company of pharmacy malpractice, general negligence, breach of warranties and other misdeeds. Some of the suits seek class-action status, meaning they could end up including thousands of people. The number of lawsuits against the New England Compounding Center continues to rise, but the company is not a major pharmaceutical company and may not have enough insurance or assets to cover the claims.
Given that reality, victims who need compensation for their damages may look elsewhere. The Boston Globe reports that the pharmaceutical company has two sister companies that could also face legal action. To succeed in including the additional firms, attorneys would have to prove that the three companies acted as one entity. Other companies that sold the products could also be sued.
Doctors and clinics may also face claims
Plaintiffs are also considering whether doctors and medical clinics should bear responsibility for their injuries. The first two suits targeted two doctors and a sports medicine and orthopedic clinic, The Globe reported.
The ultimate success of these claims may lie in whether the tainted steroids were a product sold to doctors or a service. If they are a product, clinics and physicians could be sued for defective drugs or product liability, meaning that they could be held liable without having to meet the more difficult medical malpractice standard of proof. But product liability claims against doctors are not always allowed.
If injections are defined as a service, the hospitals and doctors that gave them could be held liable under medical malpractice claims. To succeed in a medical malpractice claim, plaintiffs would have to show that doctors acted negligently and that their care fell below acceptable medical standards, a difficult standard to meet.
Regardless of whether judges rule that claims from the meningitis outbreak are medical malpractice or product liability claims, experienced and knowledgeable attorneys for injured people will examine all options for obtaining the compensation that their clients need to recover from their harm.