Top 7 Medical & Drug Injury Claim FAQs, Answered

by Lori Polemenakos   ·  5 years ago  

What happens after you file a drug injury claim? And how can you prove one specific medical device or medication hurt you? We know many people need more info about medical device or drug injury claims before they’re ready to move forward. For this reason, we’ve listed our top seven FAQs for you, along with their answers. 

1. How much time do I have to file my drug injury claim?

This is a question no one can answer online, especially without knowing all the relevant details. Is your injury from a medical implant inside your body? Is it an unreported prescription drug side effect? Or did an over-the-counter medication hurt you? First, you should know that every state has its own deadline to file medical injury claims. What’s more, many states use different deadlines for products sold on store shelves vs. prescription-only medications. The easiest way to learn how much time you have is to sign up for a free, no-obligation consultation. Once you do, an attorney can review your information and tell you how much time you have left. The shortest time limit in any state is one year, but some states allow anywhere from 6-15 years! The only person who knows how to answer your question correctly is an attorney who specializes in mass tort cases.

2. How much settlement money will I get?

Only a judge can truthfully answer this question. However, an attorney that specializes in drug injury cases like yours can give you a ballpark figure. This is a good question to ask the attorney during your free case evaluation phone call. You can also schedule an appointment to review your medical history and evidence in private. Giving your lawyer more info about your case makes it easier to estimate your cash settlement amount accurately.

3. How long will it take to resolve my drug injury case once I file the paperwork?

Nobody can answer this question without reviewing your medical history first. Ideally, your case is clear-cut, recent and includes convincing medical evidence to support your case. If that applies to you, it really just depends on whether the drug, device or product manufacturer’s willing to settle. For example: Let’s say you have a now-recalled hernia mesh inside your body and need revision surgery to replace it. Your doctor discovers scar tissue and internal adhesions inside your abdominal cavity. The surgery takes much longer than expected, and you need two weeks of unpaid leave to recover afterwards. This is a clear-cut case where lost wages, medical bills and quality of life damages add up quickly. You should have a settlement check in your hands between four months and a year from now, on average.

If many others like yourself file similar claims, a federal district judge panel may move to consolidate them all. This is called a multi-district litigation, or MDL. Once approved, you can transfer your drug injury claim under the federal MDL and receive any settlement money faster. Not only does this speed up your claim’s resolution time, you’re far more likely to win financial compensation! Plus, very few people that join a federal MDL end up testifying in court. So, it’s unlikely you’ll have to travel, appear in court or testify at all in your drug injury case.

4. What do lawyers typically charge for claims like mine? I’m broke from medical bills and can’t afford to pay much, if anything!               

Every lawyer we match you with specializes in mass tort cases. (“Mass tort” is an umbrella legal term for lawsuits that involve drugs, medical devices and products sold in stores.) All mass tort lawyers work on contingency, so you’ll pay nothing up front for professional claim help. The lawyer will review your medical history and all evidence you gather for your initial case evaluation. Contingency-based lawyers will only accept you as a client if they feel you have a “winnable” drug injury case. That means the lawyer will tell you during your free consultation if it’s worth moving forward with your claim. If your claim seems “winnable,” the lawyer will then ask you to sign a fee agreement. This fee agreement tells you how much you’ll owe the lawyer afterwards for helping win your case. You won’t owe a penny until after your claim’s approved for a cash settlement. And if your case doesn’t win, you’ll owe the lawyer $0!

Still not sure if a drug injury claim’s right for you? You don’t have to decide until after your free case evaluation is complete. Only you can decide whether moving forward with your case is the right decision. You don’t have to let that same attorney handle your drug injury case, either.

5. How can I prove X (drug, device, product) caused my Y (health complications, injury, side effects)?

There are three steps to proving this link in most product, medical device and drug injury cases.

Step 1: Gather evidence that shows how and when you used, took or bought the item that allegedly hurt you.

If your doctor prescribes a drug with unexpected life-threatening side effects, request full copies of your medical records. Your health insurance provider, therapist or pharmacy may also print copies of some records for you. For medical device-related claims, talk to your surgeon first. Ask for the device’s name, model/serial number and any FDA recalls, safety communications or warnings (if applicable). Hospital records showing your surgery date(s) may also help your case.

Step 2: Follow your lawyer’s advice to preserve any evidence you may need to submit into court records.

Ask your lawyer if there’s a specific process in place to preserve evidence required to support your case in court. This makes it easier to link the cause (i.e., your metal-on-metal hip implant) and effect (metallosis poisoning). For example: If you developed ovarian cancer after decades of talcum powder use, don’t throw your last bottle away! Instead, give that bottle to your lawyer. He or she can submit that bottle to a lab and test it for asbestos fibers. If the bottle tests positive, you have clear proof that a known carcinogen contaminated your baby powder. In addition, look for the store receipt showing when and where you bought that talcum powder bottle. Finally, ask your oncologist to test cancerous tissue samples for talc particles and/or asbestos fibers. This evidence helped 22 women win a $2.12 billion cash settlement from Johnson & Johnson in 2018.

Step 3: Get an expert to testify on your behalf, or a witness to record a sworn statement that supports your drug injury case.

If you don’t already have either a witness or expert in mind for this step, that’s okay! Most mass tort lawyers keep local experts, doctors or scientists on a call list to testify in such cases. For example: Your doctor recommends Invokana for type 2 diabetes after you change insurance plans. The old drug worked fine, but injectable drugs cost more under the new policy. So, you switch and everything’s fine… at first. Then you notice a blister on your foot that won’t go away. Once the podiatrist looks at it, you get bad news: That foot must come off! Only then do you learn Invokana makes you 2x more likely to need a foot or toe amputation. Your podiatrist has 10 years of medical history showing no diabetic foot injuries before starting Invokana. Your podiatrist agrees to testify in order to support your drug injury case.

You might not need all three steps above to prove your drug injury claim qualifies for a cash settlement. However, at least one or two steps are fairly standard to settle most mass tort claims.

6. Will suing a cancer-drug manufacturer make these medications cost even more, or impossible for U.S. patients to get? I don’t want to do anything that might keep new life-saving drugs off the market!

There’s zero chance this will happen, and we’ll why. It’s a myth that drugs cost more in the United States because we pay for global research and development costs. That is 100% false, and we have the numbers to prove it. Cancer drug manufacturers like Sanofi spend 3x as much money on marketing medications as they spend on research and development. You know those annoying Truvada TV commercials that run constantly? Those commercials are Gilead’s marketing dollars at work. In fact, studies show manufacturers inflate each new cancer drug’s price by a billion dollars. They do this specifically to cover their marketing campaigns after launch. But that’s not a one-time markup cost, unfortunately. That extra billion gets tacked onto drug prices every year, and only U.S. patients pay this extra cost. Read the full investigation that debunks this popular myth about cancer drug costs.

Need even more proof? Johnson & Johnson earns staggering annual profits. In 2018 alone, J&J earned $81.6 billion in revenue. Global pharmaceutical sales brought in almost half that amount, or $40.7 billion. Drug injury lawsuits like yours are so small, they’re simply line items in J&J’s quarterly budget statements. Even the $2.12 billion J&J owed 22 litigants in damages that year took up less than 4% of their profits. Every company that makes prescription drugs as well as medical implants operates this way. Even if nobody filed a single drug injury claim next year, these companies would still face ongoing lawsuits. That’s because the U.S. government sues companies like J&J for violations all the time. These lawsuits typically involve things such as Medicare fraud, false advertising claims and safety violations in overseas manufacturing plants.

7. If this drug/device/product is so dangerous, why is it still sold in stores? Why doesn’t the FDA just recall it?

Most people don’t know how the FDA actually works. Many prescription medications don’t go through their strict PMA (pre-market approval) process. Instead, Big Pharma companies agree to conduct post-market studies after launching these drugs on the market. In other words, you’re the company’s guinea pig that tests medications for unknown side effects and long-term complications!

And medical implants often have a worse track record when it comes to safety. Today, less than 1% of medical implants going into patients’ bodies secure FDA approval first. Instead, companies “clear” these devices through a controversial system called the 510(k) program. This began when Congress passed the Medical Device Amendments Act in 1976. Today, any company can submit a letter to the FDA saying their new device is “substantially similar” to another, currently approved one. That letter gets dangerous things like pelvic mesh (also known as TVM) onto market, harming millions of women.

As for why you still see talcum powder on store shelves despite a recent asbestos scare, here’s why. The FDA only approves drugs and medical devices, not cosmetics. Cosmetics are under a completely different FDA regulation category, which also includes talc. (It’s the main ingredient in most powder-based makeups, such as eyeshadow.) As a result, the FDA never tests those products for contaminants like asbestos. The FDA has no authority to either recall cosmetics or enforce manufacturer testing.

It can warn consumers when products test positive for asbestos, like Claire’s and Justice makeup in 2017. Legally, however, it has no way to make companies pull their products off store shelves.

Related: Find Your State’s Deadline to File a Medical Injury Claim

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Lori Polemenakos is Director of Consumer Content and SEO strategist for LeadingResponse, a legal marketing company. An award-winning journalist, writer and editor based in Dallas, Texas, she's produced articles for major brands such as, Yahoo!, MSN, AOL, Xfinity,, and edited several published books. Since 2016, she's published hundreds of articles about Social Security disability, workers' compensation, veterans' benefits, personal injury, mass tort, auto accident claims, bankruptcy, employment law and other related legal issues.