One of the concepts involved in initiating a lawsuit that can often be very confusing to plaintiffs is determining the proper court where the lawsuit may be brought. Particularly when lawsuits involve several plaintiffs in different locations, or a defendant company that operates in many states, it can be hard to determine the correct place to begin. While plaintiffs are often given deference in bringing a lawsuit where they would like (assuming the location is still proper), defendants can have lawsuits dismissed when the location is particularly inconvenient and other, more convenient locations are available. This is known as the doctrine of forum non conveniens. A recent case before the West Virginia Supreme Court addresses this doctrine and how it can be applied.
News media across the country have been chronicling the consistent rise in opioid use and addiction throughout the United States over the last few years. Whether due to health issues, economic struggles, or general malaise among the public, the use and abuse of opioids has risen to the level of a national health crisis. Opioids are prescription drugs, requiring that they be prescribed by a doctor and dispensed by a pharmacist. Thus, as addiction levels have risen, criticism has increasingly turned to the possible contributions of physicians and pharmacists to this growing problem, as well as their liability for the relative ease of access to and misuse of prescription medications.
In response to concerns about the way health care professionals may be negligently contributing to an opioid epidemic, West Virginia Attorney General Patrick Morrisey recently unveiled new draft best practices for physicians and pharmacists who prescribe and dispense opioid medications. Thus far, the best practices have been met largely with support by the medical community, since they seek to standardize the correct ways for medical professionals to use opioids within their practice, and lessen possibilities of mistakes or misuse within the State.
West Virginia law gives a person injured by another person or entity’s negligence the right to sue those responsible for the injuries. But what happens when the person suing also shares some of the blame? The state Supreme Court recently considered that question in a case brought by a group of people that admitted breaking the law to get their hands on prescription drugs, and sued the doctors and pharmacies that they said helped them become addicted to the controlled substances.
The case involved lawsuits by nearly 30 people against a handful of drug stores and physicians, alleging that the doctors negligently prescribed them certain drugs and that the pharmacies negligently dispensed those drugs, causing the plaintiffs to become hooked on the substances. Each person had been a patient at the Mountain Medical Center, where they were supposedly seeking treatment for car and workplace accidents and were prescribed drugs like Lortab, OxyContin and Xanax. The MMC was later raided by the FBI for violating federal and state law on the prescription of medication. Only one of the pharmacies was subject to criminal penalties related to the raid.
Most of the plaintiffs – if not all – admitted that they had been abusing prescription drugs before they went to MMC, according to the Court. Many of them also said they used fraud or misrepresentation to obtain the drugs from MMC, that they obtained drugs from more than one doctor at the same time and that they sold some of the drugs, all of which are illegal actions. Still, the plaintiffs argued that the pharmacies acted in concert with MMC – which they called a well-known “pill mill” – to get them hooked on the prescription medication. That included filling the prescriptions for excessive time periods and filling prescriptions for separate “synergistic” controlled substances that enhanced the effect of the other drugs.
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:
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.