While most types of medical care carry some risk, the medication you take to regulate your body systems and treat specific conditions should be safe. Unfortunately, inadequate testing and other pharmaceutical failings can lead to dangerous medication making it onto the market.
Serious injury or permanent conditions caused by unsafe pharmaceuticals are a type of product liability personal injury claim. However, pharmaceutical injury claims are often more complex than other types of defective product claims due to the medical component.
In a previous blog post, “What to Do When You Suffer From Pharmaceutical Malpractice,” we discussed how to tell if you have a pharmaceutical negligence claim. In this piece, we go into more detail about what you need to know when dealing with these specific personal injury claims.
Medical Care Is the First Step Toward a Successful Personal Injury Claim
Pharmaceutical injury claims can be difficult to support in court, as we’ll discuss in our section on the burden of proof. Because these claims require a higher amount of evidence than simpler claims, it’s vital that victims of defective drugs seek medical care right away.
Seeing your primary care physician or an emergency room doctor as soon as you notice your symptoms creates an official record of when the symptoms began. Your doctor’s notes, any medical imaging pictures or photographs, and prescription records can be used as evidence in your claim.
Other Defective Medical Products Can Lead to a Claim
While the main focus of pharmaceutical injury claims is on defective medication, other unsafe products can also qualify. The factor that sets defective medical devices apart from general medical malpractice suits is whether or not the device is unsafe on its own or due to a provider’s negligence.
For example, a medical device intended to be used at home that causes an injury during normal use is a defective product. An injury caused because a surgeon failed to comply with sterilization procedures is medical malpractice.
Medication Side Effect Warnings Can Affect Liability
Advertisements for prescription medication virtually always include a fast-paced portion listing the worst potential side effects of the drug. These warning lists are intended to reduce the manufacturer’s liability for any defects and to meet the legal obligation known as “duty to warn.”
However, even if your side effect is listed, the company may still be liable. If the advertisements for the drug were misleading and encouraged an off-label use, patients who used the medication in the advertised way may have claims.
Additionally, if the description of the side effect is too vague to give patients an idea of the risk they’re taking when on the medication, the company may be liable.
It’s also important to note that, while many pharmaceutical injury claims hold the manufacturer liable, other individuals or organizations who distributed the drug may also have legal responsibility.
For example, a sales representative who mislead a clinician or a pharmacy that incorrectly dispensed the drug may have some liability.
Pharmaceutical Injury Claims Come With a High Burden of Proof
In order to submit a successful pharmaceutical injury claim, you must prove that the medication caused your symptoms. Generally, this claim means that you either must prove that the medication was inherently unsafe or was defective in some way.
The burden of proof includes showing that you took the medication as directed and that you did not receive adequate warning of the side effects. Additionally, you must provide evidence that you suffered substantial loss or injury, which we’ll discuss in the next section.
Several Types of Injury Can Qualify for This Type of Personal Injury Claim
There are no standards for the type of side effect that qualifies as a pharmaceutical injury except that the side effect must result directly from the defective medication. If you suffered serious acute injuries or permanent injuries, your experience may qualify.
Common injuries cited in pharmaceutical injury claims include:
You may also be able to cite financial losses in your claim, especially if the medication or treatment was exorbitantly expensive or not covered by health insurance.
The Statute of Limitations Can Depend on Your Symptoms
Virtually all personal injury claims have a set statute of limitations. The statute of limitations varies by state. For example, in Washington, a personal injury claim must be filed within three years.
However, many defective pharmaceuticals do not cause immediate side effects. If you don’t develop symptoms until you’ve already been taking the medication for three years, you may still have a claim. In this case, the statute of limitations begins from when you first noticed your symptoms.
If you have late-appearing symptoms, it is crucial to document them with the help of your doctor and seek legal help as soon as possible.
Have you been suffering serious or permanent side effects caused by a prescription medication? Consult with the law team at Otorowski Morrow and Golden, PLLC. to learn more about your rights in this situation and how a personal injury claim may aid in your recovery.