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.