What kind of legal action can be taken if my son was given expired medicine from from a drugstore chain that made him sick?

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What kind of legal action can be taken if my son was given expired medicine from from a drugstore chain that made him sick?

My son was given Amoxicillin from that made him even more sick. I did not know why so I continued to give the medicine. However, when I was going to dispose of the container, I noticed that under the name sticker there was a different name on it. So I proceeded to look at the information and the medecine had expired 6 months earlier. I would like to know iwhat kind of legal action I can take?

Asked on May 10, 2012 under Malpractice Law, California

Answers:

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

Answered 8 years ago | Contributor

You could sue the drugstore chain for negligence.  Negligence is the failure to exercise due care (that degree of care that a reasonable drugstore would have exercised under the same or similar circumstances to prevent foreseeable harm).

In order to prove negligence, you will need to prove duty (of due care mentioned above), breach of duty (failure to exercise due care), actual cause, proximate cause and damages.

Actual cause means but for the drugstore chain selling expired medication would your son have become ill?  If the answer is no, actual cause has been established.  Proximate cause means are there any unforeseeable, intervening acts which would relieve the drugstore chain of liability?  If the answer is no, proximate cause has been established.  Damages means the amount of compensation you are seeking in your lawsuit.  Your son's damages would be compensation for his medical bills and compensation for pain and suffering.  Compensation for the medical bills is straight reimbursement.  Compensation for pain and suffering is an amount in addition to the medical bills.  If your son is a minor, you will need to be appointed guardian ad litem to file a lawsuit on his behalf. 

Prior to filing a lawsuit against the drugstore chain, it may be possible to settle the case with the drugstore chain's insurance carrier.  When your son completes his medical treatment and is released by the doctor, obtain his medical bills and medical reports.  Your son's personal injury case filed with the drugstore chain's insurance carrier should include the medical bills and medical reports.  As mentioned above, compensation for the medical bills is straight reimbursement.  The medical reports will document the nature and extent of your son's injury and will be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills.  If the case is settled with the drugstore chain's insurance carrier, NO lawsuit is filed.  If you are dissatisfied with settlement offers from the drugstore chain's insurance carrier, reject the settlement offers and file your lawsuit on behalf of your son for negligence against the drugstore chain.  If the case is NOT settled with the drugstore chain's insurance carrier, your son's lawsuit must be filed prior to the expiration of the applicable statute of limitations or your son will lose his rights forever in the matter.


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