What can you do if a defective medical device injures you?

What can you do if a defective medical device injures you?
What can you do if a defective medical device injures you

Defective medical devices have far more consequences than you may think. Over the past decade, nearly two million people have suffered some injury from faulty medical devices, causing roughly 80,000 deaths.

Those who survive may live with consequences based on a device they did not necessarily choose to use. You may deserve significant financial compensation if you or a loved one have suffered an injury from a defective medical device.

First, you may need to fight the manufacturer over a lengthy legal process. Whoever plays a role in making or selling any product must stand behind it and owe you various obligations under the law, including common law or specific state statutes.

You can hold them legally responsible and can get financial compensation when you successfully sue them.

The first step that you should take is to hire an experienced product liability attorney to represent you in the legal process. Your lawyer will build your case, gathering evidence before and during the lawsuit process that can show that someone else was to blame for your injuries.

It costs you nothing out of your pocket to get this legal help, meaning that you have nothing to lose by calling an attorney.

Who Can You Sue in a Product Liability Case?

The law allows you to hold anyone involved in the stream of commerce responsible for your injuries.

Potential defendants can include:

  • Manufacturers: The company that made the device will be the most likely defendant in your case. They are responsible for both the design and manufacture of the device.
  • Doctors: The doctor is the one who chose and selected the device. Before selecting it, they should have instructed you about the proper way to use it and transmitted any relevant warnings.
  • Retail Suppliers: The company that sold the device is also in the “chain of commerce.” For example, you can file a lawsuit against the store if you purchase a device from an establishment such as Walgreens or CVS. You can also include distributors and wholesalers in your lawsuit.
  • Hospitals: Hospitals are also in the distribution chain because they are between the manufacturer and you.

Medical Devices Include Many Things to Consider

Medical devices are more than just automated machinery that doctors use for surgery or implant into your body; they have a broad definition.

According to the Food, Drug, and Cosmetic Act, a medical device can be:

“An instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including a component part, or accessory.”

The following are examples of things that are medical devices:

Hernia Mesh
  • Hernia mesh
  • Pacemakers
  • Prosthetics
  • Artificial hips and knees
  • Surgical blankets
  • Robotic surgery machines
  • Vaginal mesh
  • Diagnostic testing equipment

Government Regulation Does Not Always Protect You

You cannot always count on the Food and Drug Administration to protect you from defective medical devices. There are numerous flaws in the FDA’s approval process and how the agency tracks defective medical devices.

The FDA may not even scrutinize every medical device that makes its way to the market. There are numerous shortcuts that manufacturers can take advantage of when they are selling a new product, and the FDA may only closely review a small fraction of medical devices.

Examples of Recent Defective Medical Device Lawsuits

Some examples of large-scale failures in medical devices that have led to lawsuits include:

  • Hernia mesh: Mesh that doctors use to repair hernias often disintegrates and migrates within the body after they implant it. Removing all of the mesh can be nearly impossible, leaving the patient in continuous pain. Recently, a woman won a $4.8 million verdict from a Rhode Island jury after she suffered severe gastrointestinal distress from defective hernia mesh.
  • Surgical Blankets: Bair makes a surgical blanket to regulate the patient’s body temperature during surgery. The blanket has caused patients to develop cases of severe infections after surgery. Over 6,000 lawsuits against the manufacturer are currently pending in federal court.
  • Robotic Surgery Machines: Surgical robots have caused injuries like electrical burns and organ damage. Recently, a Florida woman died during a surgical procedure when the surgical robot burned her small intestine. Intuitive Surgical, Inc. has faced several lawsuits over the years for its Da Vinci surgical robot.
  • Hip Implants: Manufacturers of hip replacements have paid out billions of dollars in settlements due to the defective design of these devices. They made earlier hip implants out of metal, and friction caused the release of toxic substances into the bloodstream. In addition, the device’s design also caused a high probability of failure, causing the patient to need additional surgery to replace the device.
  • CPAP Machines: The Phillips CPAP machine for sleep apnea had a layer of foam that degraded over time. Users then breathed in chemical particles, causing them to develop numerous respiratory illnesses and cancer.

Grounds for Product Liability Lawsuits

At the outset, you can hold the defendant liable if you prove it made, distributed, or sold a defective medical device.

There are three primary types of product defects:

  • Design: There is an inherent defect in the design of the product, which makes it unreasonably dangerous for its intended use
  • Manufacturing: Something went wrong in the manufacturing process, causing the product to depart from its intended design. 
  • Marketing: The manufacturer knew or should have known of a defect but did not take steps to fix it or warn the general public.

Even if you can hold the defendant strictly liable, they can still present a defense that can keep them from losing the case. Thus, there are numerous grounds for liability that you may use as part of your case, including negligence or the breach of various other warranties under state law.

Medical Device Lawsuit Damages

Damages & Compensation

You can get compensation for your injuries if you prove the defendant is liable.

Your medical device lawsuit damages can include:

Suppose your family has lost a loved one to a defective medical device. In that case, your family may be entitled to wrongful death damages, compensating you for the personal injury of a family member dying.

Punitive damages frighten defendants in product liability cases, and your attorney may obtain evidence that shows that the manufacturer knew there was a defect. Many product liability lawsuit verdicts grew to eight figures or more because of extensive evidence of egregious actions.

Medical Device Lawsuit Procedures

You are most likely not the only person injured by a defective medical device. The same defect was likely present in countless devices, and it may have injured thousands of other people or more.

You will begin your lawsuit in the same way as any other product liability case. Your lawyer will advise you to file your case in federal or state court.

If your case goes to federal court, your lawsuit can unfold in several ways:

  • Individual Lawsuits: Your case can proceed as part of an individual lawsuit if you suffered unique damages and only a few similar lawsuits are pending.
  • Multidistrict Litigation: Multidistrict litigation includes several cases in federal court before one judge. These cases will proceed collectively through the discovery process. You will have a common set of evidence available to each plaintiff that legal teams gathered in discovery. Then, the court will try each case separately before a jury. The court will first try a handful of bellwether cases to show the defendant how their arguments will play in front of a jury. Multidistrict litigation is becoming far more prevalent in product liability cases.
  • Class Action Lawsuits: If numerous plaintiffs suffered the same harm, the cases may join into a class action lawsuit. Product liability injuries are rarely one class action case because plaintiffs do not often suffer the same damage. Defendants vigorously fight efforts to certify a class because they do not want to make it easy for plaintiffs to get any efficiencies in suing them.

Regardless of how your case proceeds, you need an attorney to represent you and protect your legal interests.

Defective Medical Device Cases Are Very Hard Fought

Medical Device Lawsuit

There may be billions of dollars at stake in a defective medical device lawsuit. Remember that the device likely harmed more people, and the defendant may fight your case tooth and nail because they know they can face large-scale liability.

Defendants will fight you vigorously during the discovery process. They are trying to limit the scope of evidence that you can use against them. One of the biggest battles will center around your use of expert witnesses.

A significant milestone in your case is the Daubert hearing, in which a judge will rule whether you can use your proposed expert witnesses. If the judge strikes your expert witnesses, it can mean the end of your case.

As discovery comes to a close, the defendant may begin to explore a potential settlement. Then, they may realize the scope of their liability and can make settlement offers. More likely, the defendant will at least want to try some cases to see whether they will win.

If and when the defendant loses the initial cases, they may get even more serious about settlements. If they lose scores of individual cases, they may face billions of dollars in liability. Then, the defendant may try to reach a global settlement to resolve all the lawsuits against them.

You will then file a claim against the settlement pool to get your money. Still, you need to know how much your claim is worth because you may need to negotiate to get a fair amount of compensation for your case.

The Time to Hire a Lawyer Is Right After You Learn of Your Injury

There is a potential legal issue in a defective medical device case. State law governs each case depending on where you are filing your lawsuit. You have a limited time to file a lawsuit from when you suffered an injury or should have known that you suffered an injury. The exact period depends on the state.

Most often, you do not immediately know that you have suffered an injury from the medical device after using it initially. Your injuries usually develop over time, raising the question of when you should have known you suffered an injury. Statutes of limitations are often an issue in product liability cases.

The defendant may argue that you should have known of your injuries sooner than you did. They may claim that you knew of your injuries but did not take legal action in time to have legal rights.

Product Liability Lawyers Work on a Contingency Basis

Emroch & Kilduff Personal Injury Attorneys in Richmond and Tappahannock Virgina

You do not have to worry about paying a product liability lawyer out of your own pocket because they will work on a contingency fee basis. There is significant uncertainty about whether you will win your product liability case.

Your lawyer also takes on the risk because they can end up without compensation. Thus, you only have to pay a lawyer if and when you win your case.

Working on a contingency basis also means that the lawyer's fees will come from a percentage of your compensation. Typically, the lawyer will receive a percentage of the total settlement or verdict. This arrangement ensures the lawyer seeks the maximum compensation for your case.

Choosing a lawyer who works on a contingency basis can be beneficial for several reasons. First and foremost, it allows individuals who otherwise couldn't afford legal representation to pursue their rights. It also aligns the lawyer's interests with yours, as they only get paid if you win your case.

A defective medical device can cause devastating consequences. That's why you need a product liability lawyer. 

They have the experience and resources necessary to navigate this complex area of law and fight for the compensation you deserve. Don't let financial concerns keep you from pursuing justice – contact a personal injury lawyer today.

William B. Kilduff


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