“I was given a medicine that I am allergic to and it caused my ulcer. I was in ICU for four days and had to have surgery. Is this malpractice or negligence?”
November 24th, 2013 by Patrick Hogan
If the medicine was prescribed by a physician, the issue may be considered as a medical malpractice, otherwise a negligence action may be filed. For medical malpractice, the California Law provides that the appropriate standard of care required of a medical professional is not a matter of common lay knowledge. Therefore, except in cases of “egregious” medical negligence, expert medical testimony is required in medical malpractice actions to establish the standard of care required of a physician (or other health care provider) under the circumstances. [Flowers v. Torrance Mem. Hosp. Med. Ctr. (1994)].
A patient’s death or deterioration of an existing condition may be the result of concurrent causes: the existing illness or condition and alleged medical malpractice (e.g., physician’s failure to properly diagnose or treat the condition). The malpractice is not actionable unless it—and not the existing condition—was the probable cause (greater-than–50% likelihood) of the injury or death. [Simmons v. West Covina Med. Clinic (1989)].
For negligence, the consumer expectation test is not appropriate to measure a design defect in prescription drugs. “While the ‘ordinary consumer’ may have a reasonable expectation that a product such as a machine he purchases will operate safely when used as intended, a patient’s expectations regarding the effects of such a drug are those related to him by his physician, to whom the manufacturer directs the warnings regarding the drug’s properties.
The manufacturer cannot be held liable if it has provided appropriate warnings and the doctor fails in his duty to transmit these warnings to the patient or if the patient relies on inaccurate information from others regarding side effects of the drug.” [Brown v. Super.Ct. (Abbott Laboratories) (19880]. As a matter of law, manufacturers are immune from “design defect” strict liability for injuries attributable to prescription drugs.
So long as the drug was properly prepared (no “manufacturing defect”) and accompanied by warnings of its dangerous propensities that were known or scientifically knowable at the time of distribution (no “warning defect”), drug manufacturers cannot be held strictly liable for injuries caused by prescription drugs; manufacturer liability for a “design defect” will lie only on a negligence theory. [Brown v. Super.Ct. (Abbott Laboratories)(1988)]. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury claim.