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Legal problems could multiply in meningitis outbreak

A nationwide meningitis outbreak linked to a Framingham drug compounding pharmacy is likely to cause a flood of lawsuits that could involve physicians, health clinics, hospitals, and others connected in any way with the contaminated medicines, according to legal specialists.

Attorneys representing clients who say they were injected with tainted steroids from New England Compounding Center already have filed at least a dozen lawsuits across the country, accusing it of pharmacy malpractice, general negligence, breach of warranties, and other wrongdoing.

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But perhaps most ominously for health care professionals who injected patients with steroids from New England Compounding, two New Jersey lawsuits also target an orthopaedic and sports medicine clinic, and two physicians — alleging negligence and violation of product liability laws in that state.

While legal specialists say it’s usually difficult to win claims against health care providers for using faulty medical products they didn’t make, the meningitis outbreak is so large — with more than 250 reported cases, 21 deaths, and potentially thousands of people injected with steroids in 16 states — that widespread suits against New England Compounding and others are all but inevitable.

“You’re really talking about a cascading crisis of claims,” said Michael Rustad, a professor at Suffolk University School of Law. “We’re talking of hundreds of millions of dollars in potential claims.”

A New England Compounding spokesman declined to comment on legal and financial issues.

Complicating matters is the fact that suits are being filed in multiple jurisdictions with differing definitions of malpractice, negligence, product liability, and other potential claims. So far, suits have been filed in both federal and state courts in Florida, Massachusetts, Michigan, Minnesota, New Jersey, Tennessee, and Virginia.

A handful of the suits seek class-action status, which means they could end up covering thousands of people, even if they’re weren’t actually diagnosed with meningitis.

Though Massachusetts civil law allows punitive damages only in the cases of wrongful deaths, other states are more lenient when it comes to punitive damage claims, attorneys said.

The line of plaintiffs is likely to be longest at New England Compounding. But many lawyers say it’s doubtful the company has enough assets or insurance to cover all the potential claims. Attorneys also suspect the company will file for bankruptcy soon to freeze any litigation, at least temporarily.

Two sister companies of New England Compounding Center — Medical Sales Management Inc. of Framingham and Ameridose LLC of Westborough — could also theoretically vulnerable to legal action if they are found to have been “sellers” of tainted products, according to several legal specialists.

A spokesman for New England Compounding has said the pharmacy operated separately from the other firms, but plaintiffs’ attorneys could go after Medical Sales Management and Ameridose on the basis that all three companies effectively acted as one entity.

In addition, other companies that may have sold New England Compounding products could be caught in any legal quagmire.

The possibility of New England Compounding Center — or its insurer — not being able to afford lawyers to handle multiple cases and subsequent possible awards could spark plaintiffs’ attorneys to seek other defendants, said Paul D’Amore, a medical malpractice lawyer at the Cochran Firm in Washington, D.C.

“The flood gates are going to open,” D’Amore predicted. “You’re going to get people suing everyone.”

But like Rudstad, D’Amore also believes it will be tough to win cases against health care providers that received and used shipments from New England Compounding.

State laws and the courts have traditionally protected health care providers from product-liability claims, he said. A medical malpractice suit would also have to show that providers acted both negligently and outside the norms of professional standards, D’Amore added.

That’s precisely the line of defense apparently now being formulated by Premier Orthopaedic and Sports Medicine Associates of Southern New Jersey and its parent company, Premier Orthopaedic Associates LLC. Both were named in two lawsuits filed last week by New Jersey residents who said they got sick after going to a Premier clinic and receiving injections of steroids from New England Compounding Center. Two physicians associated with Premier and New England Compounding are also named as defendants.

“It’s a problem my client didn’t cause,” Charles Gormally, an attorney for Premier, said of the widespread fungus infections tied to the medications.

“There’s no question this was a product that was sent to thousands of doctors and providers across the country,” Gormally said. “It was used by my clients in a way consistent with proper protocols.”

Michael Barrett, a lawyer for the two clients suing New England Compounding and Premier and its doctors, said they want to know how Premier acquired and used New England Compounding steroids.

“What did they know and when did they know it?” said Barrett. He said he plans to explore numerous issues during discovery proceedings, including the possibility of marketing, pricing, or shipping agreements between Premier and New England Compounding.

“My clients are now in a state of panic and are very, very upset,” he said. “They don’t know if they’ve been [infected] or not.”

Some patients injected with the steroids, however, have so far taken a more moderate approach to the health crisis.

Matthew Spencer, 42, part-time mayor of Somersworth, N.H., recently suffered from an aching head, nausea, and other ailments and spent seven days in a hospital after receiving a steroid injection for back pain at a clinic. Though he hasn’t officially been diagnosed with meningitis, the steroid he received came from New England Compounding Center.

“If it was the result of negligence, yeah, you have to think of taking action,” Spencer said. “But we just don’t know all the facts yet. I want more information before I do anything. I’m still more concentrating on my health, not other things.”

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