As of late October, 2012, 24 people have already died from an outbreak of fungal meningitis caused by contaminated steroid medications prepared by the New England Compounding Center (NECC). More deaths and serious illnesses are expected as the disease can have a long gestation period. As many as 14,000 people may have been exposed to the contaminated medication.
NECC is a relatively small company. It might not take many lawsuits to drive the company into bankruptcy. As a result, victims who were made ill, and the families of people who died as a result of the contaminated medication, are suing other “deep pocket” entities involved in providing the medication, including doctors and orthopedic clinics that provided the injections.
The question of whether an injection is a service or a product may be very important. If an injection is considered a product, the lawsuits would be based on product liability laws. Under product liability laws, defendants would be held liable regardless of whether or not there was any intention to cause harm. As long as the product is defective they can be held responsible.
On the other hand, if an injection is considered a service and not a product, the applicable laws would be the ones governing medical malpractice. In that case, it would be much more difficult for victims to win a case against doctors or clinics that provided the injections, because medical malpractice requires negligence. The doctors would be able to claim they bought the medication from a reputable supplier, and they fulfilled their responsibility.
It’s quite possible that the same injection could be considered a product in one case and a service in another. It could depend on how the doctor or clinic’s bill reflects the charge for the medication.
If they have a separate charge for the medication than for the actual injecting of the drug it’s easier to argue that the medication is a product, and they are liable for selling a defective product.
On the other hand, if the bill just shows “injection” as a service with the cost of the medication not broken out separately, it could be seen as a service, and then the medical malpractice standard would have to be met.
If you or a family has been injured as a result of medical treatment, contact an experienced medical malpractice attorney at the law offices of James C. DeZao, P.A.