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Perscriptive Drug and Implant Articles & Info
Articles
Information
ANSWERS TO THE MOST FREQUENTLY ASKED QUESTIONS IN
MEDICAL IMPLANT, DEVICE AND DRUG CASES 1
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1. Who can sue in a medical implant, device and drug case?
Any person who has been injured or the survivors of a loved
one who has been killed as a result of a defective medical
implant, device or prescription drug can bring a lawsuit if they
can establish fault on the part of the manufacturer, supplier or
seller of the device or the physician(s) who inserted the device
or prescribed the drug if they can establish negligence of the
physician.
Both minors and adults can bring medical product and drug
cases.
2. Who can I sue in medical implant, device and drug cases?
A number of different persons and entities may have exposure
for liability in medical implant, device and drug cases. This
would include the manufacturer, supplier or seller of a
negligently designed or manufactured product if the plaintiff can
establish the fault of one of these defendants.
Further, you can bring a lawsuit against a physician, other
health care provider or hospital who implanted a medical device
or prescribed a dangerous drug if the plaintiff can establish
that it was below the standard of care for the health care
provider to implant the device or prescribe the drug.
However, unless it can be established that the physician
knew of the risk of the implant or drug or that the implant or
prescription was contraindicated given your condition, you will
have a very difficult time winning the case against a health care
provider.
3. I have heard that California product liability law favors
injured plaintiffs. Is this also true for medical products
including prescription drugs?
No. The courts in California, as a matter of public policy,
have made it more difficult for plaintiffs to prevail in medical
product cases than almost any other type of product case.
In other product liability cases, all a consumer has to
prove is that the product was defectively designed. If the
consumer can prove the product was defectively designed, there
will be strict liability under the law.
However, in medical implant, device and prescription drug
cases, there is no strict liability for defective design and a
plaintiff must prove that the product was negligently
manufactured or designed.
4. Isn’t it hard for somebody like me to take on the big drug
companies and manufacturers of medical implants and devices?
Yes, absolutely. Because you must establish negligence in
the design and manufacturing process of the product, it becomes
virtually impossible for one person alone to take on a drug or
medical product manufacturing company. The case will cost
millions of dollars, and perhaps tens of millions of dollars to
pursue.
5. So how does a plaintiff ever win a case against a drug or
medical product manufacturer?
With rare exceptions, a plaintiff can only prevail in a case
against a drug or medical product manufacturer if thousands of
other plaintiffs were also injured by the drug or product and the
attorneys in those cases ban together to share expenses and spend
the time that it takes to even begin to equal the resources of
the drug and product manufacturers.
6. What exactly must I prove to win a case against a
prescription drug company?
You must prove one of the following:
i. Something went wrong in the manufacturing process
so that the drug was not prepared or manufactured
as it was intended to be manufactured.
ii. The drug was not accompanied by a warning of
dangers that the manufacturer knew or should have
known at the time the drug left its control;
however, a warning to the prescribing physician is
sufficient.
7. I have heard that causation can be a difficult issue in
defective medical implant, device and drug cases. Why?
To prove causation in a legal case, you must prove not only
that the product was negligently designed, manufactured or
prescribed, but also that it caused your injury, i.e., that it
was a substantial factor in your injury.
This will be a very complicated and hotly contested issue in
drug and implant cases. The breast implant cases are a good
example of this phenomenon. The implant manufacturers claim that
although the implants they manufactured were defective, the
defects did not cause any significant injuries while plaintiffs
claim that their lives have been destroyed by the defective
implants.
The only way that plaintiffs are going to prevail on
causation is if there is scientific evidence that the drug or
implant causes the disease from which the plaintiff suffers.
8. Is investigation necessary in medical implant, device or
prescription drug cases?
Yes, absolutely, although it is different than investigation
involved in other cases. Of course, information regarding the
product should be obtained and maintained such as the product
itself and warnings. However, investigation in product and drug
cases really focuses more on research than typical investigation.
It is critical that a plaintiff’s attorney learns of all of the
scientific research regarding the risks of the product and its
causal connection to various disease processes.
9. Is it necessary to obtain expert witnesses in medical
product and drug cases?
Absolutely. Plaintiffs will not only have to do the
research but will also have to retain the experts who have
performed the research to testify on liability and causation
issues and, further, plaintiff’s doctor or a doctor who
specializes in the disease process must testify that they believe
that plaintiff’s problems are due to the product or drug at
issue.
10. What damages are recoverable in a medical product and/or
drug case?
Under California law a plaintiff who has been injured by a
medical product or drug is entitled to recover all of his or her
past and future medical expenses; past and future loss of
income/earning capacity; past and future pain, suffering and
emotional distress and in cases in which the defendant’s conduct
is particularly bad, punitive damages the excess damages which
are awarded to punish the defendant.
If a person dies as the result of a defective medical
product or drug, the survivors can recover monetary damages for
their economic losses and emotional distress damages for loss of
society, love and comfort.
11. Will my case settle out of court?
If you are part of a large number of plaintiffs, there is a
high probability that your case will settle before trial. If you
are not and there are no, or few, similar cases, there is a
probability that your case will not settle for a significant
amount of money unless you can demonstrate that the product or
drug that injured you was not manufactured as intended or you can
prove a failure to warn.
12. Do I need to retain an attorney in a medical device, implant
or drug case?
Absolutely. You will either need to join a class already
represented by an attorney or find a private attorney who is
willing to take on your case.
13. How can I afford to hire an attorney and pay for the costs of a case like
this?
Most plaintiff attorneys will take a case on a contingency fee basis if
they believe that the case has merit and is worth the expense. This means
that you do not pay any fee unless you win your case. If you do win the
attorney is generally reimbursed for his or her fees and advanced costs out
of your recovery. Fees are usually 33% to 40% and costs vary widely from
case to case. However, it is critical to retain an attorney that can afford
to advance whatever costs are reasonable and necessary for you to win.
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