Defective Drugs and "Failure to Warn"

Originally published by Blizzard & Nabers Blog.

When someone has been injured, sickened or killed as a result of taking a dangerous drug, they often turn to the court system and file suit against a pharmaceutical company in order to recover for the damages caused and, in most cases, these lawsuits are filed based on a principle known as failure to warn. The basis for this principle is the foundation of all products liability law, which looks at the condition of the product in question and asks whether that product was designed or manufactured in a way that makes it reasonably safe for its intended purpose.

Basically, a failure-to-warn lawsuit is based on an allegation that the company knew its drug possessed a number of specific risks but failed to disclose them to consumers. While there exists the assumption that many useful products contain certain inherent dangers that can’t be eliminated while still keeping the product functional, it is necessary that all potential dangers be made apparent to patients and doctors in the form of a warning label, so that doctors and patients can make informed decisions regarding the use of the drug. If there exist dangers that doctors and patients are not aware of, a tremendous amount of harm can result.

Millions of People Suffer Injuries from Dangerous Drugs

Every year, millions of patients suffer serious and potentially debilitating injuries because drug manufacturers fail to provide clear concise warnings on all of the dangers associated with these products. When a patient is injured through the use of a drug, manufacturers, distributors and retailers can be held strictly liable if they failed to provide adequate warnings for their product. Failure to warn is a strict liability claim, which means they can be held liable if they were involved in the selling our production of a dangerous drug, even if their company did not act completely negligently.

A failure to warn claim is not unlike any other personal injury claim, in that the plaintiff is required to show that the manufacturer knew about the danger posed by the product and that the consumer was hurt by that product. In order to win their lawsuit, the plaintiff has to prove several elements:

• The defendant knew the product was dangerous.
• The defendant had a duty to warn consumers of the danger.
• The defendant was negligent with regard to their duty to warn.
• The plaintiff was injured due to the missing or inadequate warning.

Alternately, there is a fifth element that may or may not be present. If the product warning was there, but it wasn’t readable by the consumer, the pharmaceutical company may be found negligent. The duty to warn does not apply to obvious dangers, but rather to dangers that are not apparent to a reasonable person. For example, if a product is used by the consumer as intended and the manufacturer provides sufficient warning about a side effect, if the patient is harmed by that side effect, they have no claim against the manufacturer.

On the other hand, if the patient uses that same drug and there is no warning of a specific side effect and the consumer uses the drug as intended and suffers harm from that side effect, the drug manufacturer can be held legally responsible for that. That is the basic premise behind failure to warn.

Quite often, failure to warn cases can sound very simple, but there are many potential legal mines in that minefield. Keep in mind, in any lawsuit against a pharmaceutical company, they will have a team of lawyers looking at every possible angle so as to avoid liability for injuries. You need an experienced personal injury lawyer on your team to help you avoid these pitfalls, in order to get you the compensation you deserve for your injuries and damages. If you or a loved one has been the victim of a defective drug, please contact the Defective Drug Attorneys at Blizzard & Nabers today, so that we can help you protect your legal rights.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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