You may take part in the toxic formula lawsuit if your premature infant suffers necrotizing enterocolitis (NEC) after feeding on Similac or Enfamil formula. The lawsuit is brought against Similac and Enfamil, baby formula brands, by parents who fed their premature babies the toxic baby formula.
The lawsuit claims that the manufacturers were reluctant to warn medical providers and parents that the formulas (based on cow’s milk) put premature babies at risk of NEC, a severe gastrointestinal disorder. The types of compensation available for this lawsuit include but are not limited to medical expenses, disability costs, pain and suffering, mental anguish, and loss of enjoyment of life.
What Is Necrotizing Enterocolitis (NEC)?
NEC is a serious gastrointestinal disease, mostly affecting premature babies – babies born before the pregnancy reaches the 37th week. This disease creates inflammation in the intestinal walls, making holes develop and causing cells to die in the digestive tract.
Deadly bacteria may leak into the perforations and cause intestinal infections. It is hard for digestion to occur when the intestines are scarred.
Though the direct causes of NEC vary with premature babies, certain factors can put them at a higher risk for gastrointestinal disease. These factors include inadequate blood supply to the intestines, intestinal injury, underdeveloped intestines, and consuming cow’s milk-based formula. Blood transfusions and bacterial or viral intestinal infections can also put an infant at risk of NEC.
Symptoms of NEC
A premature baby suffering from NEC may experience abdominal swelling or bloating, poor food tolerance, bloody stools, or diarrhea. The child may also exhibit symptoms like low breathing rate or heart rate, frequent vomiting of a greenish-yellow substance, and reddish or bluish abdominal marks.
If the disease worsens, the baby might go into shock, prompting surgery. Pediatricians may also need to place the infant on a respirator and monitor the condition.
Untreated cases of necrotizing enterocolitis have fatal effects on the infant. They may cause up to 20% mortality rates in infants weighing 5.5 pounds and above. Premature babies weighing 3.3 pounds and below may have a 50% mortality rate.
Baby Formulas Increase the Risk of NEC in Premature Babies
Premature babies are prone to NEC due to their underdeveloped digestive systems. As such, their digestive systems cannot resist harmful or deadly pathogens. Preterm babies spend some time in the newborn unit of a healthcare facility. These babies are often fed with baby formulas during their stay at the facility. The infant may develop NEC if the formula is made of ingredients derived from cow’s milk.
So, it’s important to inquire about the type of baby formula the hospital uses to feed babies. If your child is at risk of NEC, ask the healthcare providers to use a formula free of cow’s milk. You should also ask them to share a detailed nutrition plan for your infant.
Once the baby is discharged from the hospital, opt for human breast milk or baby formula based on breast milk to feed the baby. Breast milk provides growth hormones, lowers blood pressure, and boosts the immune system of infants.
Another preventative measure against NEC is to have the doctors prescribe corticosteroids before birth. A corticosteroid injection can improve your unborn child’s immunity and limit the risks of developing intestinal and lung conditions.
Which Baby Formula Companies are Linked to NEC?
The toxic baby formula lawsuit primarily targets Abbott Laboratories (Similac manufacturer) and Mead Johnson (Enfamil manufacturer). It alleges that these manufacturers ignored the risks posed by the baby formulas and promoted the bovine-based products as healthy and safe for preterm babies. The suit also claims their product labels did not list NEC among the possible side effects.
The Similac baby formulas mentioned in the lawsuit include Similac Alimentum (comprising Alimentum Expert Care) and Special Care (consisting of Special Care 30, 24, 24 High Protein). Other Similac formulas include Similac Human Milk Fortifier (comprising Human Milk Fortifier Powder and Human Milk Fortifier Hydrolyzed Protein – Concentrated Liquid).
Enfamil baby formulas listed in the suit include Enfamil Human Milk Fortifier Powder (High Protein, Standard Protein, and Acidified Liquid), Enfamil NeuroPro Enfacare, and Enfamil 24 (including DHA and ARA). Enfamil Premature (30 Cal, 24 Cal, 24 Cal High Protein, and 20 Cal) is also listed.
Are Baby Formula Manufacturers Aware of the Risks?
Research-backed reports showing that bovine-based baby formulas are not safe for preterm babies are readily available online. They also date back several years ago. As such, Enfamil and Similac manufacturers must have been aware of the risks that these baby formulas pose.
The manufacturers did not take any steps to warn parents and hospitals about the potential side effects of these products in babies prone to NEC. Their negligence largely contributed to the lawsuit filed by parents across the country.
Meanwhile, the FDA continues to issue new manufacturing standards for infant nutritional products like baby formulas. It recently advised all baby formula exporters, distributors, packers, and manufacturers on how to keep powdered baby formula products away from contaminants.
There’s also an increased level of scrutiny in the baby formula sector. It was motivated by the toxic formula lawsuit and cases of contamination in Enfamil and Similac products.
Common Types of Compensation Available in the Toxic Baby Formula Lawsuit
As a parent, you can seek damages from a product liability lawsuit filed against the baby formula manufacturer or medical malpractice lawsuit filed against the hospital that fed your infant the baby formula. Here’s a breakdown of the types of compensation you can pursue from each lawsuit:
Damages for a Product Liability Claim
A product liability claim is usually brought by a product liability attorney representing an individual who suffered an illness or injury due to a product he or she used or a medication he or she took. The claim largely focuses on the extent and seriousness of illness or injury one suffers.
In the legal sector, damages refer to the lump sum a plaintiff gets from a lawsuit to cover losses that come from an illness or injury or punish the defendant’s wrongdoing. A jury or judge can order the damages after the verdict favors the plaintiff.
In the toxic baby formula lawsuit, your claim will focus on the injuries, illnesses, or non-monetary losses your infant faced after getting fed a bovine-based baby formula. You can receive compensatory damages from the suit. Punitive damages may also be available.
Compensatory damages can help compensate for the illness or injuries that the baby formula caused. They may compensate for economic losses or non-economic losses. Economic losses constitute money you lost after your infant got NEC, whether through treating the condition or seeking post-care help. Examples include medical expenses, the cost of disability, and lost future wages – the income the infant would have earned if NEC did not affect his or her daily life.
Non-economic losses are awarded to compensate for aspects of the illness or injury that you cannot quantify. These aspects include loss of consortium (if the illness affects family relations) and pain and suffering.
You may also receive punitive damages, which serve as a punishment to the negligent manufacturer and a warning against other manufacturers considering engaging in similar acts. These damages apply if the judge (bench trial) or jury (jury trial) determines the manufacturer’s conduct was outrageous.
Medical Malpractice Damages
If the hospital knew the potential dangers of feeding premature babies with baby formulas derived from cow’s milk, you might file a medical malpractice lawsuit against the administrators. Medical malpractice damages include reduced life quality, medical bills, and pain and suffering.
Filing a medical malpractice claim can help recover losses and damages stemming from the hospital’s wrongdoing. The claim can help you recoup economic and non-economic losses.
Your infant’s injury or illness will lay the foundation for determining compensation for the medical malpractice claim. You might receive a financial recovery at trial or through a settlement your lawyer reaches with the other party out-of-court. However, the lawsuit has to prove that your infant suffered specific harm and you incurred economic losses due to healthcare providers’ medical malpractice.
For general (non-economic) damages, you will seek compensation for the non-monetary effects of the medical malpractice on your child. They may include loss of life enjoyment, mental and physical pain and suffering, permanent or long-term disability effects, and inability to participate in hobbies.
Pain and suffering may include discomfort and physical pain caused by the malpractice. In this case, the malpractice involves feeding a premature baby formula based on cow’s milk while knowing its side effects.
Special damages (economic losses) in the lawsuit have a monetary value, since they look at the economic effects of the malpractice. They include medical bills (including present and future costs of seeking medical care), income lost while caring for the baby, and time missed at work. The long-term effects of NEC on the infant’s future income-earning ability also form part of the economic losses.
For the medical malpractice claim to make sense to the court, you need a testimony from an expert witness in the medical field. The expert witness testimony should focus on the potential consequences of necrotizing enterocolitis on the infant. It may also help estimate the lost earning capacity value.
What to Do If Your Child Has Been Affected by NEC
If your infant developed NEC after feeding on a bovine-based formula, you might file a toxic baby formula lawsuit. But before you get there, you must seek medical attention for the child. With adequate documentation of the treatment, you can prove that you sought treatment for NEC and incurred certain costs in the process.
NEC treatment usually depends on the degree of infection. Most NEC cases do not require surgery as treatment when caught early. During treatment, the doctor will replace the infant’s regular feeder with a specialized intravenous catheter. The reason is that, at this point, the child will have trouble feeding.
The physician will also apply a nasogastric tube to the infant to help relieve pain and swelling, common symptoms of NEC. These two procedures are usually done in the intensive care unit for infants.
Part of the treatment will involve frequent blood tests. Blood tests help determine whether harmful pathogens have spread to delicate organs in the body. They also help determine whether the blood vessels are responding to treatment.
Since NEC makes it hard for food to be digested and absorbed, the infant’s body may have difficulty making blood. As a result, a blood transfusion may be necessary. Parents are informed about the health checks and histories of the blood donors before doing the transfusion.
The doctor will recommend surgery if there are signs of severe perforations in the intestines. Surgery may also be an option if the infant’s body is not responding well to treatment. Surgery involves removing the damaged parts of the intestine to allow the uninfected parts to function normally.
A surgeon may also perform an ostomy, which opens the intestinal walls, allowing maximum recovery of the bowels. That said, parents must understand that surgery in preterm infants is risky and requires plenty of recovery time.
When to Contact an Injury Lawyer
Choose the right lawyer after seeking medical treatment for your infant. The lawyer will review your case and determine if it qualifies for the toxic baby formula lawsuit. The lawyer may also advise whether pursuing a medical malpractice or product liability lawsuit is necessary.
Two parties may be liable for your infant’s NEC diagnosis, depending on the formula used to feed your child. Ask your lawyer about the parties that you should name in the lawsuit. Your options include the medical practitioners who failed to inform you about the dangers of giving a premature baby a formula based on cow’s milk and the manufacturer who knew about the risks of the product.
Cooperate with the lawyer when discussing aspects of the NEC lawsuit. In particular, be willing to share your infant’s medical records and expenses that will form part of the evidence in the trial. You should also explain the steps you took after noticing your infant’s signs of NEC.
Before trial, you will need to file a complaint and serve it to the manufacturers or other parties listed in the lawsuit with the help of a lawyer. The complaint will explain your version of the events that led to the NEC diagnosis and treatment. It will also request financial compensation and give the defendant time to respond.
Once the defendant responds to the complaint, the claim will go through a discovery process where both sides will share evidence and discuss matters related to the lawsuit. Through discovery, each side gets to understand its position in the claim. Witness interviews may happen to ascertain your claim and help prove its validity.
If the other party tries to dismiss your lawsuit, you can oppose it with the help of your lawyer. If there are no pending motions against your case, it will proceed to trial, where a judge or jury will rule whether you are entitled to compensation.
Who Qualifies to File the Toxic Baby Formula Lawsuit?
Like other lawsuits, plaintiffs in the toxic baby formula lawsuits involving Enfamil and Similac brands must meet specific criteria. You can ask your Chicago mass torts lawyer whether you meet the eligibility requirements for joining or filing the lawsuit.
Generally, the victim must be a premature baby fed on Enfamil or Similac baby formula for the incident to qualify in the suit. There must be a record showing that the baby formula also got administered to the baby in the hospital.
The preterm baby must have been diagnosed with a disease or condition triggered by consuming a bovine-based formula. These conditions or diseases include necrotizing enterocolitis, bacterial infection, meningitis, sepsis, and bloody stool. Signs and symptoms, such as fatigue, shortness of breath, and abnormal bleeding, may also help build the claim if they got captured in the diagnosis.
Time Limits for Filing the Toxic Formula Lawsuit
In Illinois, product liability laws require you to file the claim two years after the injury or illness detection or diagnosis. You must gather adequate evidence supporting your case and file the claim within this time limit. If you do it late, the court will not accept the claim.
The court may grant you an extension for the deadline, depending on the unique circumstances of the product liability claim. The start of the filing window may also vary with the case. So, consult your lawyer about the filing timeline to avoid missing out on the potential damages.
Currently, most product liability lawsuits against Similac and Enfamil formulas are pursued by individual plaintiffs. They have yet to reach the class action lawsuit level.