Product liability entails the part of the law in which producers, distributors, and traders who break the bulk among others who are involved in the whole process of availing the products to the public are held accountable for all the bad effects those products may have on the final consumer. The consumers laid up by the faulty manufactured goods can opt to take legal action against all those involved in either the manufacture of the products or the suppliers depending on the nature and type of defect.
A Product is said to be defective if its safety is not guaranteed. A product is not just as flawed because there is a safer version in the market, so defective tests must be carried out to verify whether the product is defective or not. The implication is that whether a product is defective or not the persons to verify this goes beyond just the consumer and the manufacturer because the products can get damaged during storage or even transportation (Robert,2004). Basing on that argument all those involved in handling the product must be brought together when performing the defective test.
In doing this, a court will have to take factors such as in what way was marketing done, were there any manufacturers warnings, how should the product be used, and was the product supplied at the right time into account. Some consumers may use a producer’s products especially the imported ones and then get injured as a result and that is why the law considers the factors such as the uses of the product and warnings into account. A consumer therefore can take legal action under the act to pay damages in case of demise or personal harm.
However, in as much as these regulations have been put in place to cover the consumers against exploitation and injuries, it is not always the case because the consumers at times end up being victimized or suffering as a result of these regulations. We will take a critical look at some of these habits and what effects they have on the consumers.
Medical litigation and its shortcomings
Medical unprofessional conduct is a result of carelessness or by leaving out certain crucial procedures by doctors or other medical practitioners. In other words, they digressing the accepted standards of professionalism in the medical context and hence end up causing injury to their patients. In the medical unprofessional conduct cases, there is usually the patient who is the plaintiff or their lawyer in case of death. The medical care provider is the defendant. The plaintiff must establish that a legal duty was owed, that particular duty was breached leading to the injury suffered. He/she should also show evidence of damage. During the trial, the verity finder renders a verdict for the party that prevails.
The assessment of compensation and disciplinary damages are carried out within the strictures under the instructions of the judge. Expert testimony is required before the final judgment is made. The expert must be highly qualified by the court standards. He/she must have varied knowledge and experience as far as the case at hand is concerned. The expert’s testimonial must meet certain set standards set by the court. The judge handling the case is the one to determine whether the testimonial is valid depending on the evidence at hand (Hillary & Daniel, 2007). At times the judge may just choose to use precedent as the base for determining the final verdict.
Medical malpractice lawsuits have had so many shortcomings and many of them tend to be very severe. The whole judicial process is very expensive. This may block out some poor patients who were not well treated. So kind of it is justice for the rich. These cases are also very inefficient at times. They may overlook some key issues and then render the defendant innocent even if the practitioner handled the patient very carelessly, not paying attention to his/her client well being.
These tendencies to some extent have also made some medical practitioners very negligent in carrying out their duties because they chest their way through the courts. This makes such cases adversarial and not predictable. Such like flawed regulations don’t take good care of consumers’ rights. I think that these regulations were enacted to help reduce cases of medical malpractices among the medical staff but seemingly this is just not the case as such instances are still on the increase.
Food litigation and their inefficiencies
In the second instance, we shall consider firms that produce, supply, store, or retail food products. Food products can easily lead to several bodily and mental illnesses in human beings. Mostly the food products that can cause illnesses to have pathogens, for example, some parasites, viruses among others. It is very saddening that despite the many government efforts to curb food-borne illnesses, their prevalence rates are still soaring very high.
Statistics show that for instance seventy-six million cases of food-borne illnesses are reported yearly in the United States of America. This results in three hundred and twenty-five thousand hospitalizations and approximately five thousand deaths.
Foods that are contaminated by pathogens correspond to the crucial causes of accidental injury or even death. Under the product law of torts, consumers harmed by-products that are not safe can sue for the damages caused by using such products. The law specifies that when the producers are legally responsible for the injuries due to their products then they are obliged to compensate the injured persons or their survivors. In cases involving contaminated foods, product liability is strong enough to pay damages for the losses as a result of the food-borne infection. This type of law not only encourages producers to produce safe and sound food products but also compensates all the persons who were injured as a result of using such food products.
This second part is particularly very important because food-borne infections impose the risk of great financial losses to society. This should not be treated lightly because the costs are so high. The yearly medical costs, untimely deaths, efficiency loss due to five main food-borne pathogens are estimated to be about six point nine billion U.S dollars. This estimate however only represents a small percentage of the total expenses due to food-borne infections, which includes some expenses that cannot be quantified in monetary terms. This includes costs such as pain, suffering, and time. These are at times often overlooked while estimating the amount of the total expenses.
When organizations avoid paying for the damages caused by their products, these costs have to be met by the consumers, unfortunately. This makes life to be very unbearable for these consumers who at times may not be able to afford the high costs of treatment.
The shared investments in food safety aim to lower the gross prevalence of food-borne infections and liability costs hence result in a more favorable sharing of food safety costs between the producers and their final consumers. Grievances by the consumers make them sue to recover damages caused by the food-borne infections. These lawsuits can however affect the behavior of organizations that manufacture or distribute food products. The enormity of the effect unfortunately remains unknown since the information that involves injuries that result from food products that are contaminated by the microbial pathogens is in short supply (Hillary & Daniel, 2007).
Most firms however prefer that cases involving microbial pathogen infections be treated privately out of court. This makes compensation payments very confidential and they also avoid excess publicity about their products. The consumers that allow this kind of agreement, are all getting it wrong though because such crucial information should be allowed to flow freely among the public to make this producer more careful with whatever they are bringing to the market. Otherwise, if such trends are given a chance in society, then these firms will just continue being negligent of their actions.
The other option is not generally smooth either because court cases involving liability for food-borne infections at times appear to be very inconsistent since product liability law is very complicated and the nature of cases for food contaminated products is still in evolution. For example, the law now varies depending on the type of food and the pathogens causing infections. Most foodborne infections do not result in mitigation and only a small percentage of consumers who sue for reparation are remunerated for their injuries. This information suggests that the straight impact of court decisions on organizations is very minute.
This type of justice is not the best for consumers because they purchase these products innocently but then at the time the products often turn out to be harmful rather than satisfying the customer’s needs. The best solution to this is that very strict jurisdictions should be put in place to control this carelessness and negligence in this industry or else consumers will continue suffering as a result of this. This is so because the current justice system has so many loopholes that the producers are exploiting at the expense of consumer safety. People are dying or getting malfunctions because of this, so something should be done to help push for the better management of such important issues as consumer health and satisfaction.
Pharmaceutical liability and its concerns
The other instance that raises lots of questions is the pharmaceutical industry. Yes, we appreciate the role that they are playing in supplying us with drugs but we are not entirely satisfied because most often consumers have had extremely serious side effects or even died as a result of using these drugs. Pharmaceutical liability describes all the legal consequences that a producer of drugs may face having to encounter should their products injure the consumers. All the cases that involve injuries caused by drugs, therapeutic devices, and all other pharmaceuticals are all considered as subsets of product legal responsibility cases.
The claims brought up by the plaintiffs against the producers are in most cases based on the premise of firm liability, inattention, or failure to warn the consumers on the potential risk of severe side effects. We should have in mind that thousands of people are either seriously injured or die because of relying on prescription drugs or the drugs that are bought over the counter that they had initially considered safe.
Unfortunately, recent statistics have revealed that many drugs on sale today have either not been well tested or do not have sufficient warnings to the users. The most saddening part of it is that these are the drugs that have at times caused serious side effects such as stroke, heart attack, and liver failure. Consumers therefore should be made aware of the dangers and probable lethal side effects of pharmaceutical drugs. If the consumers are not well-fed with the essential information, then they have the right to take legal, action.
However, these cases are at times not very easy, making them very challenging. These drugs are always approved by the relevant government agencies before they are allowed to operate in the market, so this makes them fit for the market. Some producers though do not provide their consumers with all the relevant information regarding the drug on the precinct that they have been approved by the government.
This is not sound though because it is very dangerous, consumers and doctors need the prescription literature or label that should be used as a guide. There are arguments though by these producers that product liability court cases result in over warnings that make them lose sales as a result of creating fear in the consumers. The argument is to some extend sound because over forewarning often confuses patients and doctors making them terminate the use of drugs that could have been very important to them.
There are so many side effects or rather defects cause by drug usage. Over-the-counter drugs, pharmaceutical devices, herbal drug supplements, and prescription drugs may lead to several severe side effects that may lead to pharmaceutical liability claims. Design effects arise when the producer or manufacturer falls short in designing the product rendering it not safe for its proposed usage (McGovern, 1990).
This is purely technical because the manufacturer could have chosen a safer alternative to avoid a foreseen risk but then instead opted not to do so or was just overly ignorant. Manufacturing imperfection, on the other hand, arises when the manufacturing did not follow the design, because a design can be perfect but if manufacturing is poorly done then it often compromises on the safety measures. This happens mostly when the manufacturer uses the wrong substances or defaults in using proper quality controls.
A marketing defect arises when the producer is unable to warn the consumers of the dangers of using the drug or the failure to give clear instructions on the proper use of the drug. A safe product as far as the consumer is concerned may turn out to be a very dangerous one if he/she is not thoroughly warned. This gives the manufacturer the duty to furnish the consumers with information on the potential dangers that may arise as a result of using their products ( Fise, 1998). This is challenging though because the consumers may also shy from certain vital products especially if the dangers are so gross. But all in all the information should just be sufficient and only touching on the important aspects and not hiding anything.
In pharmaceutical litigation cases claims for damages arising from the use of recommendation drugs, over-the-counter drugs herbal, and medical devices may be treated under two lawful theories namely negligence and strict liability. The strict liability theory course is always pursued when the drug is on assessment and the judge is asked to decide on whether the drug or its manufacturing process is faulty. For the claim to be proved there must be evidence showing that the drug is defective and hence not safe. It must also be proved beyond any doubt that the drug’s inefficiency caused your injuries that can be valued in monetary terms.
A claim is regarded as a negligent claim if it is proved beyond doubt that the producer owes the plaintiff a duty of care and that the duty was contravened, that the violation leads to the injuries suffered by someone who used the product. The doctor or pharmacist should not be left out especially if he/she is the one who prescribed the medication. If they are the ones who lead to the injuries, then they are the ones responsible for the injuries and not the manufacturer of the drug. However, if they are not responsible for the damages suffered, then the manufacturer is solemnly responsible.
The government always plays its role in protecting the consumers by only approving the drugs that meet the certain laid standards by the medical practitioners. However, this does not guarantee the consumers the safety of the drugs because certain minute details could have been overlooked by the bureau of standards (Fise, 1998). Consumers are therefore requested to act swiftly and take legal action in good time in case of injuries because there is always a time limit on when to report regardless of how severe the damage is.
In essence, recalling such defective products is the way forward if we are to have a healthy population. When these products are recalled the manufacturers have a chance of improving them and then returning them to the market in a better condition to effectively cater for the consumer needs. Otherwise not recalling them could prove to be suicidal. This is only so if it is the manufacturer’s fault but if the fault came from elsewhere and then misconstrued as the manufacturer’s fault then the effects will still not be favorable. It still takes us back to insisting that the judicial system should be flawless if the consumers are to be secure.
Reference
Consumer Product and Safety Act (1972). Section 2051.
Fise, M (1998). Enhancing the safety of the consumed goods by the users: product safety. Macmillan publications (2) 22-31.
Hillary, W.and Daniel, P (2007) Countering counterfeits with consumer choices.who is right? Longman publications.1-7.
McGovern, F. (1990) The sequence of accumulation Tort proceedings: Yale paper no 122.
Robert K (2004) Nutritional product and Botulism.health issues to be focused upon.longmann publication.