Can you sue a doctor for prescribing a recalled drug?

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Can you sue a doctor for prescribing a recalled drug?

Asked on August 26, 2015 under Malpractice Law, Oregon

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Was the drug prescribed before the recall? If so, you don't have any malpractice case.
Was the drug prescribed after the recall?  If so, did the doctor have reasonable notice of the recall? 
If the doctor had reasonable notice of the recall and prescribed the drug, you may have a malpractice claim if you can document an injury or other medical condition caused by the recalled drug.  If you were not injured or had no medical condition caused by the recalled drug, you don't have any malpractice case.
Medical malpractice is negligence.  Negligence is the failure to exercise due care that degree of care that a reasonable medical practitioner in the community would have exercised under the same or similar circumstances to prevent foreseeable harm.
If you have a viable malpractice claim as discussed above documented illness/injury, etc. from the recalled drug, it may be possible to settle the case with the doctor's malpractice insurance carrier without filing a lawsuit.  Your claim filed with the malpractice insurance carrier should include your medical bills, medical reports, and documentation of wage loss.
Compensation for the medical bills is straight reimbursement.
The medical reports will document the nature and extent of your injury/medical condition due to the recalled drug, and will be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills.
Compensation for wage loss is straight reimbursement.
If the case is settled with the malpractice insurance carrier, NO lawsuit is filed.  If you are dissatisfied with settlement offers from the malpractice insurance carrier, reject the settlement offers and file a lawsuit for negligence against the doctor.
If the case is NOT settled with the malpractice insurance carrier, your lawsuit for negligence against the doctor must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.


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