Written by Faith Anderson on October 24, 2012
Product Liability vs. Medical Malpractice
At least two New Jersey orthopedic clinics and physicians that provided the injections have been sued by plaintiffs, and legal experts predict similar complaints will be brought against other clinics and doctors across the country. However, an important determination in these lawsuits is whether courts will define the contaminated steroid as a product that was sold or as a service. If the former, patients could sue doctors and hospitals for product liability and hold them responsible regardless of intent to harm. If the latter however, plaintiffs would most likely face the tougher task of proving negligence under state medical malpractice laws. In the New Jersey case, plaintiffs accused the doctors of negligence and sought to invoke strict liability for the clinics, meaning the facility could be held liable for selling a defective product even if it didn’t know about a defect.
Meningitis Diagnoses and Deaths Related to Steroid Injection
Twenty-three people have already died from fungal meningitis linked to NECC’s steroid injection, and nearly 300 others have been infected with the disease. According to officials from the U.S. Centers for Disease Control and Prevention (CDC), as many as 14,000 people across the U.S. were exposed to potentially contaminated steroids, most of which were injected directly into the spine to treat back pain. NECC has already been sued by patients in Tennessee, Michigan and Minnesota, and in one Massachusetts case, plaintiffs have gone after NECC executives, seeking a court order to freeze the assets of company owners Greg Conigliaro and Lisa and Barry Cadden.
Outcomes of Meningitis Lawsuits Could Vary by State
Product liability lawsuits against hospitals or doctors are not always permitted. Some states impose caps on damages for product liability claims, and in other states, doctors are protected from strict liability standards. Because the meningitis outbreak is widespread, meaning lawsuits will be filed in many different states, the outcomes could vary. And doctors and hospitals aren’t the only ones who could be held responsible; every party in the steroid injection supply chain, including compounders to suppliers to distributors, could face litigation. Despite the fact that the FDA has been under fire for inadequate regulation of compounding pharmacies like NECC, the federal government is unlikely to be sued by plaintiffs, unless it is discovered that the FDA played a key role in letting the defective product on the market through negligent regulation or testing.