West Virginia Injury Lawyer Blog

Medical malpractice is one of the hardest cases to prove, especially against major medical corporations, pharmaceutical companies or hospitals. However, an experienced medical malpractice attorney can fight for your rights against any corporation, doctor or medical provider, no matter what the size, if he or she is knowledgeable in the current laws, the burden of proof necessary in malpractice cases and the legal precedents in this area of law.

Malpractice is often cited in cases in which patients are given prescription drugs incorrectly or irresponsibly, and in which they also suffer a tangible injury. A lawyer must prove negligence as well as show evidence of injury if success is to be assured in a malpractice case involving prescription drugs. Negligence can mean that the doctor or medical professional gave you the wrong dosage, instructed you to use the drug incorrectly or didn't give you enough of a particular medicine as is accepted for use in the medical field for your particular condition. Once negligence is proven, documented injuries directly related to the misdiagnosis or misdistribution must be shown.

If you or someone you love has suffered ill effects after being given a particular prescription drug, you can help your case by keeping meticulous records of your health, the side effects or injuries you experience and doctors visits as they occur. The more careful you are in your recordkeeping, the stronger case you will have. A lawyer can then argue for compensation for your medical bills, pain and suffering, lost wages and more.

Every prescription drug issued by a doctor in West Virginia is labeled with a list of potential side effects and risks for drug interactions. The U.S. Food and Drug Administration (FDA) requires strict prescription drug labeling so that consumers are protected from injury or even death. Although mislabeling issues have been the root of some personal injury lawsuits against drug companies, more recent cases are stemming from drug contamination and harmful side effects not reported (or known) by drug companies. Cases involving popular prescriptions such as Fentanyl, Reglan, Seroquel, Levaquin, Paxil, Yasmin and Heparin have been widely litigated and publicized.

The Heparin Contamination of 2008
It's not just the interactions or side effects of prescription drugs that consumers have to worry about anymore. Sometimes, the drugs themselves are tainted. As an example, a mass supply of the blood-thinner Heparin (made by Baxter Health Corporation) was contaminated in 2008. Made in China and shipped to the United States, multi-dose and single-dose vials were recalled because they contained an unknown contaminant. Heparin was already associated with serious injuries and deaths when used as prescribed, so this contamination only caused more controversy. In late 2009, the FDA required new labeling for Heparin:

Pay Attention to Side Effects
It's important to recognize when a prescription is not having a positive effect on your system. Some people go on taking prescriptions, despite changes in their health condition, simply because their doctor told them to take the drugs. Others don't pay attention to headaches, ringing in the ears, elevated blood pressure and other seemingly less serious side effects until it's too late. If you or someone you love has been injured by prescription drug contamination, mislabeling or side effects, contact a personal injury lawyer immediately.

In West Virginia, people who have suffered from injuries resulting from administration of prescription drugs often find it difficult to take action against health care providers directly. House Bill 2011, enacted in 2005, prohibits patients from suing health care providers for personal injury caused by prescription drugs used in accordance with FDA regulations. The burden of proof lies with the patient to prove that the provider violated regulations of the drug's use in order to have a viable case.

And it's not even enough if the doctor apologizes for the mistake. According to West Virginia HB 3174, even if a healthcare provider apologizes to a patient or expresses sympathy, this is not an admission of liability in the matter and is not basis for a claim. This makes suing for medical malpractice very tricky in cases where prescription drugs may have been prescribed according to FDA standards but still caused harm.

However, as of March 2009, patients can take legal action against drug companies directly. In Wyeth v. Levine, the U.S. Supreme Court ruled that patients could sue drug manufacturers for personal injuries, even after FDA approval. In this case, Diana Levine lost her right hand to gangrene after taking promethazine (Phenergan), a Wyeth drug used to treat nausea caused by migraines. Wyeth indicated that the preferred methods of administration were through IV drip and intramuscular injection.

Unfortunately, a physician's assistant administered the drug through an IV push directly into an artery instead of a vein, causing the gangrene that eventually took over her hand. Ms. Levine successfully sued the clinic (since there was definite malpractice) but she also named Wyeth as a defendant, claiming that the drug's label should have more clearly instructed clinicians against using an IV push injection. She won her case and was awarded $6.7 million.

The impact of this case on personal injury cases is far-reaching. Basically, the Supreme Court ruled that although the FDA sets standards for safety, it can't possibly oversee the specific labeling of over 11,000 drugs on the market, so the responsibility lies with the drugs companies to regulate themselves more carefully to prevent injuries like this from occurring. If you have received injuries as the result of a mislabeled or under-labeled prescription drug, contact a personal injury attorney immediately.