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Can You Sue for Medication Side Effects?

Written by Berkowitz

Connecticut's Pharmacy Error Attorneys - The Berkowitz Law Firm LLC

Every year, more than six million people in the United States suffer unexpected prescription medication side effects that are serious enough to require medical attention – this figure doesn’t even include those who are harmed by over-the-counter medications. If this has happened to you, you might have a credible claim for compensation from your doctor, a drug manufacturer, or another defendant.

Products Liability Law in Connecticut

The US Food and Drug Administration requires drug manufacturers to submit new drugs to extensive testing before they can be placed on the market. The FDA will not approve a new drug unless it considers it reasonably safe. You might imagine, then, that it would be impossible to win a personal injury claim against a drug manufacturer for the distribution of a drug that has already received FDA approval.

Such is not the case, however. Connecticut product liability law allows such claims to proceed, and the federal government allows states to set even higher standards for product safety than the FDA does. There are two ways in which you are particularly likely to be able to hold a drug manufacturer, wholesaler, or retailer liable for harm caused to you by a defective drug:

  • If the company ignored an FDA recall of the drug; or
  • If the drug’s packaging failed to include warnings of the dangers of the drug that would have prevented the harm you suffered (“This product should not be used by pregnant women,” for example).

There can be other bases for holding a company liable for drug side effects as well – design defects, for example, or manufacturing defects.

Medical Malpractice in Connecticut

Connecticut medical malpractice law requires healthcare professionals, such as doctors, to meet a very high “standard of care” concerning their patients. Furthermore, this standard varies according to the circumstances and the doctor. A neurosurgeon, for example, will be held to a higher standard of care than a general practitioner because of his superior skill.

A healthcare professional must exercise the care and skill of a “reasonable and prudent” healthcare provider in his particular specialty, considering the medical knowledge that is available to him (the patient’s medical records, for example).

Disclosure obligations: A doctor must also communicate certain information to his patient promptly, including the side effects of a drug being prescribed or the risks associated with a course of treatment that is being recommended. This duty even extends to information that might affect third parties (that the patient should not drive under the influence of a certain medication, for example).

Supervision obligations: Although a doctor may delegate certain tasks to subordinates or other qualified personnel such as a pharmacist, he must do so in a reasonable manner and he must adequately supervise those to whom he delegates tasks.

Addiction to Prescription Drugs

One of the most common side effects of prescription medication is addiction. Withdrawal from certain medications can be dangerous, painful, and terrifying. A doctor can be held liable for medical malpractice liability for overprescribing addictive medications if you become addicted as a result.

Prescribing you an opium-based narcotic may be appropriate (pain mediation, for example) while overprescribing them is certainly inappropriate. The difference between “prescribing” and “overprescribing” is based on:

  • Your individual medical history;
  • The medical problem that resulted in the medication being prescribed in the first place;
  • Your complaints to the doctor (in the case of a prescription for painkillers, for example, only you know for certain how much pain you were suffering);
  • Your doctor’s objective medical findings;
  • How much experience your doctor has in treating your particular condition; and
  • Existing medical knowledge on the treatment of your condition.

An expert medical witness can help establish the appropriate standard of care based on the foregoing factors.

Expert Witnesses

To win a medical malpractice case against a healthcare provider who prescribed a drug that caused you harmful side effects, you are almost certainly going to need an expert medical witness on your side who has examined your case and agrees with your position. Likewise, product liability claims tend to be scientifically complex, often requiring the use of expert witnesses to prove your case. Berkowitz Hanna can help you locate such witnesses.

The Value of Your Claim

Most (but not all) product liability and medical malpractice claims are resolved through out-of-court settlement, although sometimes the settlement doesn’t take place until after a lawsuit is filed. To effectively negotiate a settlement, you are going to need to have a good idea of how much your claim is worth. A skilled personal injury lawyer can determine your claim’s approximate value after investigating your case. You may be entitled to damages for:

  • Medical expenses
  • Lost earnings from work due to your condition
  • Pain and suffering
  • Other tangible and intangible losses

In unusual cases, even punitive damages are available.

Wrongful Death

If your loved one died from the side effects of medication, the personal representative of your loved one’s probate estate, appointed by the probate court, administers the estate. This person will be entitled to file a wrongful death lawsuit, and any compensation will be added to the value of the estate. This compensation can be substantial.

When You Are Less Likely to Win a Claim

Not every side effect of medication justifies medical malpractice or product liability claim. The following are some examples of circumstances under which you are less likely to be able to win such a claim:

  • The side effects you experienced were highly atypical. Individuals differ in terms of their body chemistry and general state of health, and the healthcare industry can’t be able to anticipate and compensate for every possible side effect that anyone might experience.
  • No design defect, manufacturing defect, or marketing defect can be identified concerning the medication and the unavoidable dangers of the drug were not unreasonable in terms of general consumer expectations.
  • Your doctor warned you of the side effects that you experienced and did not exercise negligent medical judgment under the circumstances of your case (as viewed prospectively rather than retrospectively).

Contact Berkowitz Hanna to Schedule a Free Consultation

If you have been harmed by the side effects of medication, you might have a medical malpractice or product liability claim. Because of the scientific issues involved, however, you are going to need skilled legal representation to maximize your chances of success. Contact Berkowitz Hanna today by calling us today or contacting us online to schedule a free, no-obligation case consultation. We serve clients from throughout Connecticut from our offices in Stamford, Bridgeport, Danbury, and Shelton.