What is medical product liability law about? When a person is injured from drugs such as DES (diethylstilbestrol), medical devices such as cardiac pacemakers, medical implants, silicone breast implants, intrauterine contraceptive devices such as the Dalkon Shield, or diet pills such as Fen-Phen, they may have a claim to compensation for injuries caused by these products, including medical expenses, decrease of quality of life, and past and future pain and suffering. In other words, victims are entitled to compensation from a manufacturer, distributor, hospital, or doctor, because the products or procedures used in their treatment did not live up to reasonable consumer expectations, or was defective or unreasonably dangerous, either in design, manufacture, or promotional warning or labeling or did not comply with the standard of care or the state of the art.
Because a purchase is usually made, much product liability comes from old contracts law, which we call breach of implied or express warranty. However, in the last 40 years great strides have been made in easing the consumer's burden when seeking compensation. The theory of strict liability enables a plaintiff to have their case considered by the jury if they can prove, by a properly qualified expert, that the drug or device was "defective or unreasonably dangerous," i.e., we look at the product and not the conduct. The ultimate question is always, did the manufacturer, distributor, or supplier use reasonable care and prudence in the design, manufacture, promotion, warning, or labeling?
More and more drugs and devices are being sold to the public by television and newspaper ads. Manufacturers pay millions of dollars to public relations firms to plant complimentary stories and "infomercials." Through emotional advertising, a distorted view of the risks and benefits is often portrayed to increase sales for a drug or device which does very little good and carries great risk. In the last century, quacks touted the virtues of snake oil, but despite the great medical discoveries of the past hundred years, the days of nostrums and quackery are not over.
When it comes to drugs, warnings of side effects, adverse reactions, and indications are transmitted from the manufacturer to the doctor by way of container labeling, Physician's Desk Reference manuals, brochures, and salesmen who visit the doctors. Since the patient is not likely to understand these matters, the doctor serves as the necessary intermediary for the patient's need for information. Therefore, the manufacturer does not have to warn the consumer. However, the growing trend to advertise and promote drugs and devices directly to consumers is eroding this protection. In the area of birth control pills, for example, the patient is entitled by law to the manufacturer's information.
National Women's Health Network |
www.nwhn.org/ |
Resolve (National Infertility Organization) |
www.resolve.org |
American Society for Reproductive Medicine |
www.asrm.org |
The American Surrogacy Center, Inc. |
www.surrogacy.com |
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Centers for Disease Control's Reproductive Health Information Source |
www.cdc.gov/reproductivehealth/ |
DES Action |
www.desaction.org |
The DES Cancer Network |
www.descancer.org |
PLEASE NOTE: This website and the information presented on it are general information and do not constitute legal advice. The actual facts of your case will determine applicable law. Consult a lawyer before taking any action.