What You Should Know about Defective Drug Claims in Texas?

What Should Patients in Texas Know about Pursuing Defective Drug Claims?

We can’t test our own pharmaceuticals; we have to rely on doctors, manufacturers, and regulations. In most cases, the testing and regulatory process produces safe medications or allows us to judge their risks. But some companies cover up drug risks. Other dangers are not discovered until a drug has been in use for years. When patients discover that they have been using a medication or medical device that makes them sick, they need options for recovery and for justice.

In recent years, Texas state and federal courts have seen lawsuits regarding many pharmaceuticals and medical devices, including:

Avandia, a diabetes medication found to increase the risk of heart attack
Obtryx, a type of pelvic mesh implant that led to further complications and disabilities
Risperdal, an antipsychotic with many severe side effects
Vioxx, a pain reliever associated with serious cardiac disorders
Exactech, a medical device used mainly in hip and knee replacements, which have corroded and caused pain and other severe side effects

Often just searching for the name of a drug or medical devices will give you results about lawsuits. But every injury has a different impact, and every state has different laws.. How do you know what steps to take?

Texas Law on Defective Pharmaceuticals

Who Can Sue–and Who Can They Sue?

Someone who was injured by defective drugs or medical devices is likely to file a claim against the manufacturer. Depending on the circumstances, they may also bring a claim against the seller of the drugs or device, or the doctor who prescribed them.

Claims regarding defective drug manufacturing or medical devices fall under products liability law for faulty products in general, with certain exceptions. In Texas, a manufacturer can be found liable for products that are unreasonably dangerous to the public, except for those products widely known to be “inherently unsafe.” There are three types of general product liability claims:

A poorly designed product that could never have functioned properly can give rise to a “design defect” claim.
A product that fails due to an error in the factory leads to a “manufacturing defect” claim.
If a product is improperly labeled and does not advise about the risks of use, the manufacturer is liable for “failure to warn.”

Drug companies have several legal defenses. A drug company will not be found liable if:

The drug was accompanied by a warning provided or approved by the FDA. But if the company did not follow an FDA order to withdraw the product or bribed officials, this defense will not stand.
The drug was not used for its FDA-approved purpose when it caused the claimant’s injury. However, off-label usage of pharmaceuticals for various new purposes is common, and companies may even promote it. The claimant can overcome this defense by showing that the company approved or recommended the off-label use.
The doctor who prescribed the drug was adequately warned about its risks. This is called the “learned intermediary rule,” but it can’t apply if the company withheld relevant information from physicians.
The drug was damaged or modified after it left the manufacturer’s control.

How Long Do You Have to Sue?

This can be complex. In Texas, someone who has been injured by defective drugs or medical devices may need to file a lawsuit within two years of their injury or, in some instances, the date they knew or should have known about it. Alternatively, they may have as long as 15 years, depending on the legal claims they have to advance. Injured minors may be able to count this period from their 18th birthday, but it is essential to consult an attorney about this as soon as possible since the law is complicated.

How Recovery Works

As in other personal injury suits, victims of defective drugs or medical devices need to recover their damages for:

Medical bills, including expenses for transportation
Lost income, wages, or earning opportunities
Domestic care needs
Short-term or long-term disabilities

An experienced products liability attorney will understand how to determine each client’s needs for recovery. Defective drug or medical device claims can be pursued through private settlements and lawsuits; they can also be addressed through mass torts such as class actions or multidistrict litigation (MDL).

Class Actions and Multidistrict Litigation

Class action lawsuits developed as a way for numerous individual plaintiffs to pursue claims against powerful companies. A class action generally has representative parties whose claims have to be “typical of the claims or defenses of the class.” Thus, class actions can be a good option for “typical claimants” with relatively low claims compared to the costs of a lawsuit. But there is little or no individual input possible for each claimant, as there may be hundreds or thousands.

Claimants may be able to pursue a lawsuit in an MDL instead. Unlike class actions, each plaintiff in an MDL has a separate lawsuit and attorney, but the lawsuits are part of a consolidated court process for similar claims against a corporate defendant. The MDL leads to several trials of “bellwether” cases, and their outcomes are intended to encourage the defendant towards a settlement for all claims, often including funds for future claimants. However, MDL claimants can also find they have relatively little control over the process.

A claimant can, of course, decide to pursue an individual lawsuit for a unique claim, such as a manufacturing defect resulting in drugs that only injured one person or a few people. Personal injury attorneys know how to examine each client’s situation and determine their best course of action.

If you have been injured by defective pharmaceuticals or medical devices in Texas, we want to talk to you. The Crash Angels at Pelaez Law Firm can provide you and your family with the assistance you need help you through this process and strong representation against the parties at fault. Contact us today at 210-801-9314 to schedule a free consultation in our San Antonio offices.