Page Reviewed / Updated – February 25, 2010

Defective Drugs: A Definition

Defective drugs can be defined as prescription or over-the-counter medications that are determined to have dangerous side effects that were not fully or properly identified during the clinical trials. These side effects can be severe and can put the user at greater risk for other medical issues.  A recent example is with the drug Avandia which was prescribed for diabetes but was found to increase the risk of heart disease and stroke.

Elderly individuals are much more likely to experience higher care costs as a consequence of taking defective drugs for several reasons.  Since aging individuals require more prescription drugs (4 on average), they are more likely to encounter a defective drug.  Their frailty, diminished immune systems and other health problems make them more likely to suffer debilitating conditions such as strokes from which they may never fully recover and consequently incur much higher care costs. Should an elderly person have the misfortune of suffering from a defective drug, it is important that they receive compensation in order to afford the new level of care they require.

How Pharmaceutical Litigation Works

Individual cases are difficult to win.  Most seniors receive compensation from class action suits.

Pharmaceutical litigation is the process by which attorneys obtain money from drug manufacturers to compensate and help care for the individuals who were harmed by defective drugs.  Defective drugs are considered defective products and are governed by product liability laws.  Cases can be brought to court individually or consolidated into a group called a Class Action Suit.  Individual cases are very difficult to win. It is the power of the group case which eventually convinces a pharmaceutical company to agree to a settlement. Once a settlement has been established for a group, then all future cases become much easier to settle.

When to Contact an Attorney

Victims have 2-3 years from discovery before statutes of limitations take effect.

It is extremely difficult to prove a direct relationship between a drug and an injury or condition suffered by an individual. The state of medicine today does not allow one to say “this person took this medication and they had a heart attack, therefore this medication is responsible for the heart attack”. The cause and effect relationship is not black and white, instead there are usually many contributing factors and consequently drug companies do not accept 100% of responsibility for an injury or medical condition and the resulting care costs. 

To have a case, individuals must prove they took a drug for a specific period of time and they must prove they had a medical condition within a certain time frame of taking the drug. The time periods and conditions are specific to the drug in question.

In most states, there are statutes of limitations that apply to unsafe drug cases. Individuals usually must bring their case to court within 2-3 years of discovery of condition or of the link between the condition and the drug. Therefore it is very important to contact a defective drug attorney as soon as possible if one suspects they or a loved one may have suffered a medical condition as a consequence of taking a defective drug.

Common Recalls Affecting the Elderly

Follows are some common defective drugs which have affected the elderly in recent years. If one has taken any of the following medications and experienced the related medical condition within a reasonable time frame, they should consider contacting an attorney. Defective drug attorneys will not charge for a consultation.

  • Avandia and Actos, which are prescribed for diabetes, have been linked to heart attacks and bladder cancer.
  • Crestor, which is prescribed for high cholesterol, has resulted in muscle, liver and kidney damage in elderly individuals.
  • Fosamax, originally prescribed for the loss of bone density common in seniors (osteoporosis) has been shown to have the opposite effect and resulted in hip, femur and other bone fractures.
  • Neurontin, which is prescribed for lingering pain after shingles, epilepsy and bi-polar disorder has been linked with attempted suicide and other side effects.
  • Reglan and the generic version, metoclopramide are prescribed for heartburn or gastroesophageal reflux but have resulted in the occurrence of a condition known as tardive dyskinesia (TD) which is a neurological disorder.
  • Zyprexa, which can be prescribed for dementia, Alzheimer’s and schizophrenia has been linked to an
  • increased risk of stroke, diabetes and pancreatitis.
  • Vioxx, prescribed for arthritis and pain, has resulted in heart attacks.


Level of Compensation

Seniors, because of their age, rarely receive large settlements.  Compensation in the $10,000 – $100,000 range is the norm.

An unfortunate reality of pharmaceutical litigation is because it is nearly impossible to prove cause and effect, drug makers rarely take 100% responsibility.  Instead, each case is examined for what other factors might have contributed to the condition.  For example, if an individual experiences a heart attack, they will consider their age, diet and medical history as contributing factors. They will be assigned a “rating” based on their contributing factors and that rating will determine how much compensation they will receive from the drug maker.

While the compensation received by individuals can be used to pay for the cost of care; rarely is the cost of care considered a factor in determining their compensation.

Settlement amounts vary significantly based on the age of individual, severity of the condition, timing of drug warnings and other contributing factors. The settlement amounts received by most surviving individuals in defective drug cases range from $10,000 – $100,000. One may hear about multi-million dollar settlements but these cases are extremely rare and certainly not the norm for elderly individuals.

Time to Receive Compensation

In most defective drug cases, individuals receive compensation sometime between six months and two years after consulting with an attorney. The time required to receive compensation largely depends on how recently the link between the defective drug and the medical condition was established. The more recently the discovery of the connection, the longer it will take to reach a settlement with the pharmaceutical company.  When many similar cases have gone to court before, a precedent has been established and settlements are reached more quickly.

Settlement advances exist, which can reduce time to compensation from months or years to days.

Two years, or even six months, can be a considerable amount of time to wait for a settlement especially when care is required and must be paid for immediately. Fortunately, there is a such a thing as a settlement advance which can bring compensation to a family very quickly, sometimes within days. To be clear, settlement advances are not available to, or appropriate for every family but there are situations when families can receive an advance of between 25-50% of their eventual settlement which can then be used to pay for care immediately.

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Working with a Defective Drug Attorney

Lawyers that accept defective or unsafe drug cases typically work on a contingency fee basis. This means that they do not charge their clients upfront for their services instead they take a percentage of the settlement. Usually, the judge presiding over the case determines what percentage is appropriate; 30% is typically what the attorneys receive.

This model of payment is usually viewed favorably by seniors because it does not require individuals who are on fixed incomes to come up with large amounts of money to retain legal counsel. In addition, there is little risk to the senior since if a settlement is not reached, then they do not pay the attorney for their efforts.

Compensation from defective drugs settlements cannot solve all of a family’s long term care financial concerns. However, as a possible source of funds for those whose lives have been impacted by defective drugs, it should not be ignored.