In any case in which you are suing a doctor or a hospital in connection with an injury caused by a drug you were given, you may have a claim for medical malpractice in addition to the defective product liability claim.
The legal basis for a medical malpractice claim is somewhat different from a defective product claim. (To learn more about legal theories for medical malpractice cases, read Nolo's article Medical Malpractice Basics. For the legal theories surrounding product liability claims, read Nolo's article Defective Product Claims: Theories of Liability.)
Fortunately, you don't have to choose only one type of claim. As long as they have a reasonable legal basis, you should include every available type of legal claim in your complaint.
Proving Your Claim
You will have to prove three things in order to win your lawsuit:
- you were injured
- the drug was defective or improperly marketed (including having unreasonably dangerous side effects that you were not warned about), and
- the defect or improper marketing was the cause of your injury.
If you are claiming that the side effects of the drug you took were dangerous, keep in mind that many drugs are known to carry serious risks. As long as you were properly advised of those risks and you and your doctors decided the risks were worth taking in view of your condition, you probably won't have much of a lawsuit if you suffer serious side effects. (For a more detailed discussion of what you must prove in any defective product claim, read Nolo's article Proving a Defective Product Liability Claim.)
How Long Do I Have To File My Lawsuit?
The answer to this very important question depends on state law. Every state sets certain time limits, called the "statute of limitations," on bringing product liability claims. Be sure to find out the statute of limitation in the state where you are bringing your claim. (To learn more about these time limits, read Nolo's article Time Limits for Filing a Defective Product Liability Claim. For the time limit for injuries in your state, see Nolo's article Chart: Statutes of Limitations in All 50 States.)
As with any personal injury lawsuit, file your lawsuit as soon as possible, or at a minimum, make sure you know the deadline.
Class Action Lawsuits
If you have been injured by a commonly prescribed drug, you may be only one of a large number of people who have been similarly injured. In such cases, you may be able to band together and file a class action lawsuit.
In some cases, a class action may already have been filed in connection with the drug that injured you, and you may have the option of joining that already-existing lawsuit. Joining an existing class action has several advantages:
- the lawyers for the class, who may have considerable experience and expertise in bringing big cases against big companies, will become your lawyers as well
- there will likely be little or no upfront cost to you, and
- you will not have to sort out potentially complex legal issues, such as where to file your claim.
You also have the option of not joining an existing class action and bringing your own lawsuit instead. This may be appropriate if the nature of your injuries are substantially different from the injuries of other people in the class action, or if there are special circumstances in your case.
Consider consulting with a lawyer to find out if there is an already-existing class action concerning the drug that injured you, and if so, whether it is advisable for you to join that class action.(If there is an already-existing class action, consider contacting the lawyers for the class directly; they will likely be very interested in talking with you.) Such initial consultations are usually free of charge.
Defective product cases involving pharmaceutical drugs are usually not the kind of lawsuits in which you can effectively represent yourself. The legal and medical issues in such cases are typically complex and sophisticated. Depending on your case, you may wish to retain the services of a lawyer who specializes in products liability, and perhaps even one who specializes in drug cases.
For help on choosing a good personal injury attorney, read Nolo's article Finding a Personal Injury Lawyer. Or,go straight to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click on the "Types of Cases" and "Work History" tabs to find out about the lawyer's experience, if any, with products liability and drug cases.)
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