Earlier this month, a Pennsylvania appeals court heard and affirmed a $3 million verdict against a subsidiary of Johnson and Johnson arising from a product liability case. The lawsuit stemmed from an incident in which a child suffered severe birth injuries after the mother was prescribed and took a migraine medicine during her pregnancy.
According to the court’s decision, the woman was prescribed the medicine while she was pregnant, and her daughter was subsequently born with a bilateral cleft palate and lip. The mother and father claimed that the drug manufacturer was liable for the injuries because they failed to warn the mother’s doctor of the risks associated with taking the medicine, specifically the risk of birth injuries when the medicine is taken early during pregnancy.
At the trial level, the jury found that the company was liable for the injuries. The jury awarded $1.5 million in non-economic damages and $1.5 million to the parents in potential health care costs. The company then went on to appeal the $3 million dollar verdict, claiming that they were unable to change the pregnancy warning level without the permission of the FDA. However, the three judges on the appeals panel disagreed and found that the drug manufacturer still had the duty to warn doctors of the potential risks. The judges held that the manufacturer’s argument did not adequately differentiate between the potential risk that their label implied and the scientifically known risk. The judges also found that the evidence presented showed that the manufacturer knew of the potential risk of specific birth defects, including those that affected the child. The court also found that the manufacturer should have made the risks known to prescribing doctors.
Following the lawsuit, the FDA mandated that the company update their label. Sadly, the child has had to suffer through 14 procedures and several surgeries. It was also alleged that she has suffered hearing and speech loss.
A Doctor’s Duty to Warn in New Mexico
We previously discussed New Mexico’s changing stance on pharmaceutical liability when manufacturers fail to warn doctors of potential side effects and risks. However, another closely related issue is a physician’s duty of care. If a person is injured because of the negligence of a doctor, it is important that they are able to establish that the defendant owed them a duty of care and breached that duty. Generally, doctors have a duty to inform their patients of the consequences of medical treatment. An interesting issue that sometimes arises is when a third party is injured because of the doctor’s failure to warn their patient of the side effects of their treatment or medication.
When a third party is harmed in this context, the outcome can vary drastically depending on where the injury occurred. New Mexico is one of the states that often refuses to extend liability to third parties. In the past, courts have cited public policy concerns and foreseeability. However, in certain limited circumstances, they will impose liability. For example, this may occur if the doctor administers the treatment or medication to the patient, and that patient has no knowledge of any of the side effects. Although New Mexico is harsh, it is important to note that, similar to the changing trend in the learned intermediary setting, the law is ever evolving.
Have You Been Injured Due to the Negligence of Another in New Mexico?
If you or a loved one has been injured in a situation like either of the ones discussed above, it is imperative that you contact a dedicated and experienced attorney at the Fine Law Firm. A New Mexico medical malpractice attorney at the Fine Law Firm can help you navigate this ever-changing and complicated area of the law. If you are successful, you may be entitled to monetary compensation for the injuries you or your loved one sustained. Contact the attorneys at the Fine Law Firm today at 800-640-6590.
More Blog Posts:
Foreseeability as an Element of a New Mexico Negligence Claim, New Mexico Personal Injury Lawyer Blog, June 3, 2016.
State Court Holds Recreational Immunity Does Not Apply to Hot-Air Balloon Company Providing Free Rides on Another’s Property, New Mexico Personal Injury Lawyer Blog, May 4, 2016.