Considering that the spinal steroid associated with the fungal meningitis was only recalled last month and investigations continue into the details of the incident, it is too early to know with certainty how various legal development will play out in these cases. That is made even more true by the fact that not all of those affected by the incident have actually come forward yet to explain their situation to legal professionals. In addition, as we have previously explained, the long incubation period for the fungus at issue might mean that those who develop the meningitis may actually still not know for sure. Long story short, we’ve got a long way to go before different details of the case are finalized and specific pronouncements can be made about how legal details will likely play out.
However, one beginning question that many local community members might be asking relates to who might be held responsible for this obviously preventable tragedy. Right now there are various possibile responsible parties: the compounding company where the fungus was tracked to (New England Compounding Center), the individual medical professionals who gave out the drug, the clinics where they worked, the suppliers of the contaminated drugs, and potentially others. When first looking into the matter, legal professionals must start with a wide scope and alter the details as more information comes in regarding exactly what happened at every step of the chain which allowed certain patients to receive the dangerous drug.
Product or Service?
In any event, one basic issue that will likely determine many details of the litigiation is whether courts determine the contaminated drug to be a product or if they determine the administration of that drug to simply be an indistinguishable component of a service–providing medical care. The difference may seem academic, but it might have huge implications on the specifics of the legal case against possible defendants–particularly the clinics and doctors involved in the fiasco.
Damage caused by products generally trigger “strict liability” legal rules. That means that a plaintiff who is injured has less of a burden when arguing in court on the responsibility of various parties, from the pharmacy that made the drug to the doctor that dispensed it. Strict liability means that these parties may be held responisble (in whole or in part) regardless of whether individual acts of negligence can be identified. The key is merely that harm arose and that the defednant played a certain role in the carrying of that dangeorus product to the patient which cased the injury.
Conversely, if the administration of the drug is deemed merely a service, then medical malpractice rules will likely apply in suits against medical professionals and clinics. These standards are a higher burden for plaintiffs, because actual negligence must be shown. That means that it is not enough for a plaintiff to explain the harm and show that it was caused by a product used by the defendant. In addition to that, the plaintiff would also have to show that the professionals breached a duty of reasonablenes (acted negligently). That might be far harder to prove with the evidence available.
In any event, the legal ramifications of these cases will undoubtedly develop in the coming weeeks and months as more affected parties come forward and the first suits are filed. In Chicago or throughout Illinois, if you have been affected by this incident, please take a moment to call the injury lawyers at our firm to learn about your claim and to preserve your legal rights.
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The Personal Stories Behind the Meningitis Outbreak