Success of Meningitis Lawsuits from Tainted Steroid Injection May Depend on Classification

From the Consumer Justice Foundation

As the fungal meningitis death toll rises, plaintiffs across the United States have begun to file complaints against the physicians and hospitals responsible for administering the epidural injections.

Victims of the nationwide meningitis outbreak are beginning to file lawsuits against the doctors and clinics that administered the contaminated steroid injections, and the success of these complaints could depend on whether judges decide the epidural injections are subject to medical malpractice or product liability laws. The clinic at the center of the deadly outbreak – New England Compounding Center (NECC) – is already facing a number of lawsuits related to the tainted injections, but because the company is relatively small, patients exposed to fungal meningitis are beginning to file lawsuits against more well-insured defendants, i.e. the physicians and pain clinics who administered the tainted medications. If you believe you have been exposed to fungal meningitis from NECC's tainted epidural injection, our consumer advocates at the Consumer Justice Foundation can put you in contact with an experienced meningitis outbreak attorney in your area.

Product Liability vs. Medical Malpractice

At least two New Jersey orthopedic clinics and physicians that provided the injections have been sued by plaintiffs, and legal experts predict similar complaints will be brought against other clinics and doctors across the country. However, an important determination in these lawsuits is whether courts will define the contaminated steroid as a product that was sold or as a service. If the former, patients could sue doctors and hospitals for product liability and hold them responsible regardless of intent to harm. If the latter however, plaintiffs would most likely face the tougher task of proving negligence under state medical malpractice laws. In the New Jersey case, plaintiffs accused the doctors of negligence and sought to invoke strict liability for the clinics, meaning the facility could be held liable for selling a defective product even if it didn't know about a defect.

Meningitis Diagnoses and Deaths Related to Steroid Injection

Twenty-three people have already died from fungal meningitis linked to NECC's steroid injection, and nearly 300 others have been infected with the disease. According to officials from the U.S. Centers for Disease Control and Prevention (CDC), as many as 14,000 people across the U.S. were exposed to potentially contaminated steroids, most of which were injected directly into the spine to treat back pain. NECC has already been sued by patients in Tennessee, Michigan and Minnesota, and in one Massachusetts case, plaintiffs have gone after NECC executives, seeking a court order to freeze the assets of company owners Greg Conigliaro and Lisa and Barry Cadden.

Outcomes of Meningitis Lawsuits Could Vary by State

Product liability lawsuits against hospitals or doctors are not always permitted. Some states impose caps on damages for product liability claims, and in other states, doctors are protected from strict liability standards. Because the meningitis outbreak is widespread, meaning lawsuits will be filed in many different states, the outcomes could vary. And doctors and hospitals aren't the only ones who could be held responsible; every party in the steroid injection supply chain, including compounders to suppliers to distributors, could face litigation. Despite the fact that the FDA has been under fire for inadequate regulation of compounding pharmacies like NECC, the federal government is unlikely to be sued by plaintiffs, unless it is discovered that the FDA played a key role in letting the defective product on the market through negligent regulation or testing.

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