It comes as no surprise that lawsuits have started against spine care providers who injected patients with the tainted steroids from the New England Compounding Center. It’s also no surprise that one of the first would be in New Jersey, widely known for having lots of pain management clinics.
Product Liability or Malpractice Laws
But first a judge may have to decide if the injections are subject to product liability or medical malpractice laws.
Reuters reported on October 24 that if the courts define the injections as products that are sold, then hospitals and doctors could be sued for product liability and held responsible regardless of intent to harm. These strict standards are reportedly part of most state product liability laws. The 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.
One of the clinics is Professional Pain Management Associates in Vineland, New Jersey.
Look at Billings
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, who said he is not yet involved in any lawsuits linked to the meningitis outbreak.
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, Jaroslawicz said.
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 companies in product liability lawsuits.
“That’s going to play a role in determining where claims are filed, ” Joern said.
Jaroslawicz noted that in New York, unless a doctor comes in the room drunk and cuts off the wrong leg, it’s hard to sue. “Most doctors, if they make a mistake, it’s an honest mistake.”
The lawyers say the questions that will be probed are: Did the doctor still use the product after the recall? Did the doctor timely notify patients at risk once aware of the problem? Would a reasonably reasonable practitioner use such a pharmacy for the specific prescription?
“The flood gates are going to open. You’re going to get people suing everyone, ” said one attorney in the story.
