Everyday doctors and other medical professionals prescribe pills and devices to help overcome medical conditions and sicknesses. In theory, they should make us better; however, in some cases, they make us sicker or enhance the condition they were meant to help.

Your doctor might not be the person at fault. Your injury could result from the way a medical device performs, or fails to perform. The device, like a heart valve or knee replacement, might hurt you because of the way it was manufactured or designed. The pharmaceutical company making the pill, liquid or injection could have been from a bad batch and not know about it until later.

In some cases, it may not be as easy to know who is at fault.

Harmful Medical Products

Product liability claims are often brought against the manufacturers of faulty medical devices. A faulty medical device is one that does more harm than good.

Lawsuits have been brought against makers of the following types of medical products:

• Prescription drugs
• Heart valves and pacemakers
• Implantable contraceptives and intrauterine devices
• Prostheses or artificial body parts
• Latex gloves
• Silicone implants
• Surgical and physical therapy equipment
• Respiratory devices
• Contact lenses and dental care products
• Laser and orthopedic tools

Parties to the Lawsuit

If you are harmed by a defective medical product, you may be able to sue:

• The manufacturer
• Your treating physician
• The pharmacy or supplier

Legal Theories of Liability

Claims against a medical device manufacturer are usually made under two legal theories of liability:

• Strict liability. You can recover against a manufacturer on a strict liability claim by proving the product was defective or dangerous when it left the maker and it caused your injury
• Negligence. You can recover on a negligence claim if you prove the manufacturer failed to take reasonable care to develop and manufacture the device

When faced with a lawsuit, manufacturers typically blame:

• The medical care provider for committing malpractice
• The patient for not following directions or taking reasonable precautions in using the medical device

Medical Device Defects

Although the federal Food and Drug Administration (FDA) approves drug devices for sale, it doesn't guarantee that a particular product is safe.

Medical device defects include:

• Design defects. A lawyer bringing a design defect claim takes the position that the injury would not have occurred if the product had been designed properly. Some courts take the stance that a product is defective if it's unreasonably dangerous as designed. Other courts find a device defective if it's unsafe for its intended use
• Manufacturing defects. In a manufacturing defect case, you must prove that a mistake in the manufacturing process caused the flaw in the product that injured you

Getting Help

Pursuing a medical devices case is complex and expensive. Lawyers in this field often specialize in lawsuits dealing with a specific medical device, such as implants. If you can find someone you like who specializes in your type of case, you'll obviously benefit.

Some lawyers may also be engineers or doctors. While these additional areas of expertise may help, they're not required. Above all, you should look for an experienced lawyer who has handled medical device liability cases before.

Most medical device lawyers will take these cases on a contingency fee, meaning they get no legal fee until the case settles or a verdict is reached. This fee depends on the complexity of the case and where you're located, among other things. Some lawyers require a retainer up front to pay for costs associated with the case.

It may be difficult for you to find a lawyer if your case is unusual. Be prepared to meet with or talk with several lawyers about your case.

Class Actions

You can pursue a medical device claim as an individual or sometimes as part of a class action lawsuit. Class actions are lawsuits in which a few people represent dozens or hundreds of others with similar injuries and legal claims. These cases are designed to compensate large numbers of people. They're most often effective when the amount of damages for each person is very low, or at least low enough that one person would not pursue a case alone.

This type of lawsuit isn't commonly used for people with serious or unusual injuries that can't be lumped into a single category. Increasingly, consumers are using class actions to push for medical monitoring of new devices with the aim of developing information that will benefit the group affected. If you are seriously injured by a dangerous product, then you probably want to pursue an individual lawsuit.

Questions for Your Attorney

• I think my injury was caused by the medical device and by the doctor who prescribed it. Can I bring a lawsuit against both of them?
• I think I'm sick because of an implant I received several years ago. Is it too late to sue the manufacturer for my injury?
• Can I sue a drug maker because I had an allergic reaction to the drug?

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