Toward the end of 2012, the news was full of disturbing stories of patients in nearly every state who received steroid injections contaminated with fungus. Many of those patients died from fungal meningitis, while others may have contracted the disease, which can take up to a month to display symptoms. On the surface, these cases might appear to pertain to medical malpractice law, but they might also apply to product liability law, which presents a lower burden of proof for victims and their families.
Since the compounding pharmacy responsible for the tainted products is relatively small, attorneys for the victims must expand their claims to include other associated parties who carry enough insurance to cover the substantial claims. Interestingly, the legal options might depend on how patients were billed for the injections. According to Insurance Journal, the legal cases can potentially take two approaches:
Injections billed under two line items, one for the steroid product and another for the injection, can expose facilities to product liability law for selling a defective product as well as for medical malpractice, because they failed to investigate the safety of the product prior to injecting it in patients.
Facilities that billed the injections under one line item may face only medical malpractice claims because the bills do not reflect that they specifically sold a defective product.
While product liability claims require substantial evidence, the law operates on strict liability, which means victims can sue regardless of whether the facilities that sold the product knew of the defect. Medical malpractice claims, on the other hand, require an even stricter standard of proof, possibly illustrating that medical providers knew of potential product risks and continued to inject it.