No MDL for Scope Infection Lawsuits: Why Your State's Law Matters

Why Scope Infection Claims Are Different

Many people look into a lawsuit after an infection that followed an endoscopy procedure. They often expect to find one large consolidated case they can join. Most mass tort coverage, including much of what appears on this site, describes multidistrict litigation (MDL), bellwether trials and coordinated settlement programs.

Contaminated endoscope infection claims do not work that way. No MDL and no class action exist for these claims. Lawsuits against scope manufacturers such as Olympus, Fujifilm and Pentax are filed individually in state and federal courts, one patient or one family at a time.

This difference shapes almost every part of a claim. It also means the law of the claimant’s own state matters much more than it does in a consolidated proceeding.

What Recent Filings Show

Recent reporting describes separate lawsuits rather than one coordinated docket. Infection Control Today reported on a new Olympus lawsuit that alleges a fatal VRE (vancomycin-resistant Enterococcus) infection linked to a reusable duodenoscope.

AboutLawsuits.com has reported on an Olympus lawsuit over an infection and sepsis after an ERCP procedure. It has also reported on a separate colonoscopy case involving a C. diff infection, which was reportedly set for a status hearing.

A status hearing is a routine case-management step. It is not a ruling on whether a scope caused anyone’s infection, and it does not show how the case will end. Every one of these lawsuits contains allegations that the manufacturers dispute and that no court has decided.

How an Individual Case Differs From an MDL

In an MDL, similar federal cases are sent to one judge for pretrial proceedings. Shared discovery, common rulings on expert evidence and bellwether trials can affect many cases at once. An individually filed scope infection case has none of that structure:

• It moves on its own schedule. No bellwether trial sets the pace, and no group settlement program decides the outcome.
• The evidence is specific to the case. It can include the patient’s procedure records, culture results, the scope’s identifying information and the facility’s reprocessing logs.
• Where the case is filed matters. Whether a case belongs in state or federal court, and in which location, depends on jurisdictional rules, where the procedure took place and where the parties are based.
• The claimant’s state law governs most key questions. Even when an individual case is in federal court, that court generally applies the relevant state’s substantive law to injury claims. The federal court system’s structure is explained by U.S. Courts.

Why Your State’s Law Matters So Much

Without a consolidated proceeding, the rules of the state where a claim is brought often decide questions that an MDL would handle the same way for everyone. Depending on the state, those questions can include:

• Filing deadlines. Every state sets a statute of limitations for injury claims, and many set a separate deadline for wrongful death. Some states use a “discovery rule,” which may start the clock when a person knew or should have known about the injury and its possible cause. Other states handle this differently.
• Statutes of repose. Some states have repose periods for product claims. These can bar a claim after a fixed period, no matter when the injury was discovered.
• Product liability theories. States define and prove strict liability, negligence and failure-to-warn claims differently. Some states have product liability statutes that replace common-law claims.
• Claims involving a hospital or clinic. A facility’s reprocessing practices may also be at issue. Many states apply medical-negligence rules to those claims, which can include pre-suit notice, expert affidavits or certificates of merit, and limits on certain damages.
• Shared-fault rules. When more than one party may be responsible, states apply different comparative or contributory fault rules.
• Wrongful death and survival claims. State statutes decide who may bring a claim after a death and what that claim may include.

The Legal Information Institute offers general background on many of these doctrines. Background reading is not a substitute for advice from a lawyer who knows how they apply in your state. Some of these deadlines can be short.

What the Lawsuits Allege About Scope Design

The lawsuits generally allege two things. First, that some reusable flexible endoscopes, particularly duodenoscopes used in ERCP, have complex parts that are hard to clean and disinfect fully between patients. Second, that the manufacturers did not adequately address or warn about that difficulty.

These are allegations under litigation, not established findings, and the manufacturers contest them. The FDA has published safety communications about reprocessing reusable duodenoscopes. When a regulatory figure or statement is relevant to a claim, it should be attributed to the specific FDA communication it came from.

Published outbreak investigations indexed on PubMed have reported clusters of infection associated with contaminated duodenoscopes. Whether a scope was linked to a particular patient’s infection is a question each individual case has to answer from its own evidence.

The Infections at Issue

Claims in this area have involved drug-resistant and other serious infections that followed a procedure with a reusable scope. These include:

• CRE and other carbapenem-resistant organisms
• Pseudomonas, E. coli and Klebsiella infections
• VRE and C. diff, according to the recent filings reported above
• Sepsis and, in some cases, death

The CDC tracks healthcare-associated infections and antibiotic-resistant organisms such as CRE. Its materials can help families understand a diagnosis they may have heard for the first time in a hospital room.

You Do Not Need to Know the Details

Many people assume they cannot pursue a claim because they do not know which company made the scope, what organism caused the infection, or even which facility performed the procedure. You do not need to know any of those things to ask whether you have a claim.

That information is usually in records: procedure notes, lab cultures, reprocessing logs and facility files. An attorney can request those records and work out the details. If you had a procedure and then developed a serious infection, that alone is reason enough to ask.

Practical Steps for Patients and Families

• Write down what you remember. Note the approximate date of the procedure, when symptoms began and where you were treated afterward.
• Keep paperwork. Save bills, discharge papers and any letter from a facility about possible exposure.
• Do not wait on deadlines. Because state law controls the timing, the window to file may be shorter than you expect.
• For families after a death, keep the death certificate and any estate documents. State law may decide who can bring the claim.

Our endoscope infection practice page explains more about how we review these claims.

Take the Next Step

If you or a family member developed a serious infection after an endoscopy, ERCP or colonoscopy, you can find out whether your situation may support an individual claim under your state’s law. A review costs nothing and does not commit you to anything.

Request your free case review and we will help you sort out the records, the deadlines and the questions you may not yet know to ask.