Unsafe Drugs or Medical Products
Manufacturers are obligated by law to be sure the products they make and sell are safe. This includes manufacturers of pharmaceuticals and medical products and devices. When they fail in that duty, they may be held accountable for injuries caused by their failure. There are a few different errors that may lead to a claim for damages.
Unsafe Drugs
Drugs may be unsafe for many reasons. Some examples are:
- Defects in the manufacturing process that occurred at the manufacturing facility.
- Defects in the way the drug was bottled or dispensed at the pharmacy that caused the product to become tainted.
- An error in shipping that damaged the drug.
- The manufacturer failed to provide proper instructions as to its use.
In addition, some drugs are unsafe due to unavoidable side effects even though manufactured correctly. The manufacturer has a duty to warn about the risks of taking the medication. For example, a popular over the counter pain reliever has a warning on the box informing users that the medication may cause kidney damage.
If the manufacturer fails to warn about a known danger, and plaintiffs prove they would not have taken the risky medication if they had known about the dangers, the manufacturer may be liable for damages suffered as a result of the failure to warn.
Defects in Medical Devices
Any faulty medical device can give rise to a product liability claim. There may have been a problem in the design, manufacturing process, or marketing strategy. This includes medical devices that are implanted in the body, prosthetics, and defective medical instruments or medical equipment.
Recently, there has been a problem with defective hip and knee joint replacement devices, pacemakers implanted to regulate the heartbeat, surgical mesh used for hernia and other organ repair, or other products that are implanted in the body. There was a flaw in the manufacturing process resulting in the implanted product causing serious medical problems instead of the device functioning according to the original intent. In a similar matter, a second operation is often needed to remove the implanted device. Recovery is generally not as easy as from the first surgery. Additional medical expenses are incurred, more time off work is required, and there is more pain and suffering, all of which could have been avoided if the product used had not been defective.
In other situations, medical instruments used for surgical or diagnostic procedures have been found to be defective. For example, a cautery instrument used in surgery, or even a simple wart removal, may burn the patient. LASIK surgical equipment may malfunction and cause damage to the cornea. Even an MRI machine can be defective resulting in an injury. The most common injury from defective medical devices is burn injury which generally causes second (or other) degree burns to the patient.
You can see examples of unsafe drugs, medical devices, pharmaceutical products, and other types of defective products in the following page of our website. If a person is injured by a product that is defective for any of these reasons, that person may file a claim for product liability and collect damages.
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An Unsafe Drug or Device Lawsuit
There may be several possible defendants in a claim that you were damaged by an unsafe product or device (joint and several liability). Any entity in the chain of distribution, which is the path followed by the defective drug or product on its way to you, may be named as defendants and be therefore strictly liable for the injuries caused to the user. Some who may be responsible for a defect in the product or failure to warn you of potential harm may include:
- Manufacturers. When drug or medical device manufacturers fail to comply with their duty to provide you safe products, or to warn you of the risks involved in using their products, you may seek compensation from them for the personal injuries you suffered due to their failure.
- Pharmaceutical sales representative. The sale representative has a duty to warn about dangers associated with the drug they are selling. This includes a duty to warn the physician who prescribes or recommends the medication or device.
- Physicians. Your doctor has the responsibility of warning you about potential dangers of using a recommended or prescribed device or drug. Physicians may claim the manufacturer or representative failed to warn them, but that does not absolve them of their duty to keep you safe from harm by informing you about all the risks associated with the drug or device they are recommending to you.
- Pharmacy. Pharmacists are often the last point in the chain of distribution of a drug. When they fail to warn you about the risks of the product, or fail to inform you about the proper way to use the drug or device, they may be liable for the damages you suffer as a result.
- The Hospital. If the hospital is in the chain of distribution for your defective medical device or drug, it may also be responsible for your damages.
All or one in this chain may be responsible for the damages you suffered by using the defective drug or medical device.
Product liability claim. To prevail on your claim for product liability, you must prove four elements:
- The defendant was the manufacturer, designer, or distributor of the unsafe or flawed product.
- The product was unsafe due to a flaw in the manufacturing, design, or distribution process, or there was a failure to warn of the risks of taking the medication or using the device.
- The product was used in a reasonable and foreseeable way.
- You suffered harm by using the product.
