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The legal aftermath of the deadly meningitis outbreak

In a deadly fungal meningitis outbreak that has plagued the nation, 23 people have died and almost 300 have been infected. What’s worse is that health officials warn the outbreak is far from over as many as 14,000 people may have been exposed to the contaminated steroid injections that have been blamed for the outbreak.

The steroid injections, which were used as pain medications, were distributed by a Massachusetts drug-mixing pharmacy that is now under investigation by the federal government and several states for possible license violations. The pharmacy, the New England Compounding Center, has also been served with several personal injurylawsuits.

But NECC isn’t the only party facing the lawsuits filed by people who have been stricken ill with the deadly infection. At least two physicians and orthopedic clinics that administered the steroid shots are now facing claims, and many other similar lawsuits are expected.

Part of the reason for this is that NECC is a relatively small company, which could easily go bankrupt before deserving claimants have been compensated. But legal experts say the fate of these lawsuits against well-insured doctors and clinics may depend on how the cases are defined by courts.

If courts define the tainted steroid injections as products that were sold, legal experts say doctors and clinics could be sued under product liability law and held responsible regardless of culpability. That’s because almost every state now applies the legal standard of strict product liability, meaning a distributor is held liable for selling a defective product even without knowing of defect.

On the other hand, if courts define the steroid injections as a service, medical malpractice laws will apply and plaintiffs will have to show that the doctors or clinics acted negligently. This would be a harder case to make for plaintiffs.

Finally, some states prohibit strict liability claims against doctors and hospitals, and others allow the claims but impose damages caps on the claims. This will effect where the claims are filed, legal experts say.

Source:  Reuters, “Analysis: Meningitis suits may turn on how injections are defined,” Nick Brown, Oct. 24, 2012