When you're injured in the process of medical treatment, it isn't always the doctor who is at fault. Sometimes it's the consequence of how a medical device used in your treatment performed or failed to perform, due to the way it was manufactured or because it's inherently unsafe.
Product liability claims are constantly being brought against the manufacturers of faulty medical devices, including:
- Prescription drugs
- Heart valves and pacemakers
- Implantable contraceptives and intrauterine devices
- Prostheses
- Latex gloves
- Silicone implants
- Surgical and physical therapy equipment
- Respiratory devices
- Contact lenses and dental care products
- Laser and orthopedic tools
Theories of Liability
Depending on the particular facts, you may be able to sue the following for a defective medical product which harmed you:
- The manufacturer
- Your treating physician
- The pharmacy or supplier
Claims against a manufacturer of a medical device are usually either under strict liability or negligence theories of recovery. Strict liability focuses on the product and whether it is unreasonably unsafe. A negligence claims focuses on whether the manufacturer has taken 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
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 are often categorized as either design defects (which are part of the basic design of the product) or manufacturing defects (which occur as an unintended consequence of the manufacturing process).
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 it's designed. Other courts find a device defective if it's unsafe for its intended (or "reasonably foreseeable") use.
In a manufacturing defect case, you have the legal burden of proving that the medical device which injured you had a flaw or defect due to the manufacturing process.
Getting Help
Pursuing a medical devices case is complex and expensive. Lawyers in this field often specialize in lawsuit 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, in which a few people represent dozens or hundreds of others who've been similarly injured, 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've sustained an injury because of a dangerous product, then you probably want to pursue an individual lawsuit.
Related Topics:
Medical Malpractice
Class Actions
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