What is the difference between a medicine and a poison? Unfortunately, in thousands of cases every year, the answer is “very little.” In some cases, an error is made by a doctor or a pharmacist. In other cases, however, it is the drug itself that is the problem. Dangerous drugs remain on the market despite the fact that every drug must be approved by the U.S. Food and Drug Administration (FDA) after rigorous testing.
You might think that it would be impossible to sue a drug manufacturer for a defective drug once it has obtained FDA approval. In fact, however, this is not the case. In most cases, you can sue the drug manufacturer despite FDA approval of the drug in question. FDA standards are treated as minimum standards, and individual states are permitted to hold drug companies to higher standards. Connecticut allows you to sue a drug manufacturer under its Products Liability Act.
If you are harmed by a prescription medication, you might have a products liability claim against the drug manufacturer. On the other hand, the problem might have arisen because your doctor prescribed you the wrong drug or because your pharmacist made an error when preparing your medication. If this happens, you should file a medical malpractice claim against the responsible party. A lawyer can help you identify the appropriate defendant.
Connecticut products liability law allows you to sue a drug company for a drug that is defective and unreasonably dangerous. You can also sue anyone in the chain of distribution of the drug, including wholesalers and retailers, as long as they were in the business of regularly selling pharmaceuticals.
A product liability claim must identify one of the following three types of defects:
It is possible for a products liability claim to specify more than one of the foregoing types of defects (a design defect and a label defect, for example).
If you file your products liability claim under a strict liability theory, you can win without even directly proving that the drug manufacturer was negligent. Instead, you must prove the following:
Connecticut products liability law requires you to comply with strict time limitations for filing a lawsuit. If you miss the deadline, you will sacrifice your claim; you probably won’t even be able to negotiate a private settlement..
The Statute of Limitations: The general statute of limitations deadline is three years after the date of the injury that you suffered. If you suffered a continuing injury (if you took the drug for several months, for example), the three-year clock starts ticking on the date of the last time you took the drug. This analysis can get tricky, so consult a lawyer if you are unsure.
The Discovery Rule: In many cases, you might not realize (and shouldn’t be expected to realize) that the symptoms you have been suffering from can be traced back to a defective drug. In other cases, the harm may not have produced symptoms immediately. In such cases, the statute of limitations clock does not begin running until the date that you knew or should have known that the defective drug was the cause of the harm you suffered.
The Statute of Repose: The statute of repose imposes a hard deadline on a products liability deadline. Regardless of whether the general statute of limitations deadline has expired, and regardless of any extension imposed by the discovery rule, no products liability lawsuit can be filed against a drug manufacturer more than 10 years from the date that the manufacturer last parted with possession of the product.
Under Connecticut’s comparative fault principles, you might still be able to seek compensation from a drug manufacturer even if you are partly at fault for your injury (you did not follow the doctor’s instructions on how to take the drug, for example). In such cases, your damages will be reduced in proportion to your fault.
In some cases people are injured by vaccines. A common injury, for example, is a severe allergic reaction. And in a few cases, a vaccine will cause the very disease that it was designed to protect against. The National Vaccine Injury Compensation Program (VICP) was created to help compensate people who were injured by the vaccines that are covered by the program. A claim under the VICP is an alternative to a lawsuit against a drug manufacturer.
To file a claim under the VICP, you must:
Neither Connecticut nor federal law recognizes the claim that cases of autism can be traced to vaccines. In fact, no jurisdiction in the United States recognizes this claim.
In 2013, the US Supreme Court imposed a significant limitation on an injured patient’s ability to sue a drug company. In the case, Mutual Pharmaceutical Co., Inc. v. Bartlett, the Court held that manufacturers of generic medications cannot be held liable under state “failure to warn” laws unless the brand name manufacturer had already changed its warnings, the FDA had approved the change, and the generic manufacturer failed to update its warnings accordingly.
Winning a product liability claim requires an intimate understanding of the technical issues involved, and it may require the advice and testimony of expert witnesses. The typical process involved in a defective drug products liability lawsuit is set out below:
If your loved one was harmed by a drug, whether prescription or over-the-counter, a personal injury lawsuit based on products liability may be appropriate. If your loved one eventually dies from the condition caused by the defective drug, a wrongful death lawsuit against the drug manufacturer may be in order. But who is entitled to file such a lawsuit? In Connecticut, the personal representative (executor) of the deceased victim’s probate estate must file it.
The personal representative of the estate is either the person named in the last will and testament or another party named by the probate court, usually a close family member. Wrongful death damages can be substantial, and they go to the estate itself for eventual distribution to estate beneficiaries.
Products liability claims tend to be technically complex, requiring the expertise of an attorney with experience handling Connecticut medical malpractice lawsuits. We have that experience, and we will not charge you a dime unless we win your case. Contact Berkowitz Hanna today to schedule a no-obligation case evaluation. Call us now or contact us online to get started.