Victims of a deadly U.S. meningitis outbreak are starting to sue the physicians and clinics that administered tainted steroid shots, and the success of the lawsuits could hinge on whether judges decide the injections are subject to product liability or medical malpractice laws.
The drug-mixing pharmacy linked to the outbreak, the New England Compounding Center, already faces lawsuits related to the shots, as do its executives. But because the Massachusetts company is relatively small, patients exposed to meningitis are beginning to sue more well-insured defendants.
Plaintiffs sued at least two physicians and orthopedic clinics in New Jersey that provided the injections, and experts predict similar cases against other doctors and clinics.
Such lawsuits, however, may hinge on whether courts define the tainted injections as products that were sold. In that case, hospitals and doctors could be sued for product liability and held responsible regardless of intent to harm. These strict standards are part of most state product liability laws.
However, if courts define an injection as a service, plaintiffs likely would face the tougher task of showing negligence under medical malpractice laws.
“The question will be whether the doctor or hospital failed to investigate the competence and safety of the steroids, and you’ll have to put some flesh on those bones,” said personal injury lawyer Fred Thompson of law firm Motley Rice.
Motley Rice plans to sue NECC on behalf of meningitis plaintiffs, said another attorney at the firm, Don Migliori.
In the New Jersey case, plaintiffs accused the physicians of negligence, but sought to invoke strict liability for the clinics, meaning the facility could be held liable for selling a defective product even without knowing of a defect.
To build a case under the legal standard of strict product liability, plaintiffs’ lawyers may look at clients’ medical bills, said New York personal injury lawyer David Jaroslawicz.
If a bill shows separate prices for the injection and the steroid, a plaintiff could argue that the steroid was a product sold. That argument may be harder if doctors only bill for the service or do not itemize.
Twenty-three people have died and nearly 300 have been infected in the meningitis outbreak. Health regulators estimate as many as 14,000 people were exposed to the steroids, which were used as pain medications.
NECC, the compounding pharmacy, has been sued by patients in states including Michigan, Minnesota and Tennessee.
In one Massachusetts case, plaintiffs have tried to go after NECC’s executives, seeking a court order to freeze the assets of owners Barry and Lisa Cadden and Greg Conigliaro.
Product-liability claims against doctors or hospitals are not always allowed. In some states, doctors are protected from strict liability standards, and some states impose caps on damages for such claims, said Charles Joern, a Chicago lawyer who defends firms in product liability suits. “That’s going to play a role in determining where claims are filed,” he said.
The issue of damages is central to personal injury litigation, and limits on damages can deter litigation. Compensatory damages, which cover a plaintiff’s financial loss, are often modest. But plaintiffs usually seek punitive damages, designed to punish wrongdoers, which can be much higher.
Was this article valuable?
Here are more articles you may enjoy.
Viewpoint: The 10 Major Risks Shaping Insurance Today 
Everton FC Buyer Accused of Fraud, Double-Pledging Assets in Lawsuit 
Insurer Chubb Readies $350M Payout Tied to Baltimore Bridge Collapse 
Pfizer Agrees to Settle More Than 10,000 Zantac Cancer Lawsuits From This Issue
