There have been 23 deaths and 300 infections in the recent meningitis outbreak. Public health authorities estimate that 14,000 have been exposed to the steroids that were used as pain medications. The victims and families of the deadly meningitis outbreak have begun to file malpractice claims against the doctors, hospitals, clinics and other facilities that administered the tainted shots. These cases are raising complex legal questions about whether the cases are subject to medical malpractice or product liability laws.
Patients have already filed lawsuits against the pharmacy and executives responsible for the drug mixing. Plaintiffs have also filed claims against at least 2 physicians and 2 other clinics that provided the injections. More lawsuits are expected to follow; however, the outcome will depend on how the courts define the tainted injections.
If the sterod injections are defined as “products to be sold,” doctors and hospitals could be sued for product liability. Product liability cases have different standards and doctors could be held strictly responsible, regardless of knowledge or intent to harm.
On the other hand, the courts could define the injections as a service, meaning that plaintiffs would have to prove negligence under medical malpractice laws, which have a higher standard. Plaintiffs would have to demonstrate that the doctors and hospitals failed to investigate the competence or safety of the steroids and that their missteps deviated from normal practice standards.
In a current New Jersey case, the plaintiffs accused the physicians of negligence, but sought to invoke strict liability defective product laws, holding the facility accountable even without knowledge of the defect. Determining whether the injections were a “product sold” or a service” could depend on the billing evidence, whether there were separate prices for the injection and the steroid
Source: Reuters, “Analysis: Meningitis suits may turn on how injections are defined,” Nick Brown, Oct. 24, 2012