The recent deadly fungal meningitis outbreaks in the US, which were linked to steroid injections from one supplier, present an interesting dichotomy between the practice of products liability and medical malpractice. Faced with this type of hybrid claim, healthcare providers need to take a pro-active approach and avoid finger pointing.
That is the view of Adam Sidoti, an Attorney at Law at Johnson & Bell. “It’s definitely the type of situation where you don’t want to sit back and wait,” he said. “I know a lot of institutions are now in the habit of carrying out pre suit investigations and I think that’s the best way to go about it: do these investigations and find out exactly what the facts are, whether they are known to the physician, what was known to the provider and what’s known by the manufacturer. Make sure you know what the facts are because if you go in there blind you’ll be putting yourself at a really poor position.
“I think the key is to defend your position without pointing a finger at somebody else’s position.”
He acknowledges that this can be difficult and recommends early communication between providers and manufacturers, who need to share information so that a cogent, cohesive defense can be developed. In some cases, a defense may not be possible – in which case, cooperation in resolution is preferred. Tolling agreements, wherein defendants can agree to refrain from the filing of contribution actions and other counterclaims, can help to present a unified defense.
“You agree not to file any lawsuits against each other, not to point fingers. If it gets to the point where you get to trial then you have to do that, then by all means that happens, but as far as pre-suit or pre-trial settlement is concerned I think the best position is really to remain in a defence posture but be joined at the hip because then the plaintiff can’t play one off against the other.”
fungal meningitis, product liability, medical malpractice
