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Can I Sue for a Defective Medical Device?

by | Nov 24, 2020 | Personal Injury

Medical devices are supposed to improve our lives. Hip implants and knee replacements, for example, are supposed to enhance our mobility and our ability to engage in the activities of daily life. But what happens when your medical device does the opposite? If your medical device is defective and has caused you injuries, you might be eligible for compensation.

How Do I Know if My Medical Device is Defective?

A medical device can be defective in design or formulation.[1] This means that there was a problem with the device that caused the injury, and the manufacturer unreasonably failed to use a safer design or formulation alternative, or knew that no reasonable person would use the device if he or she knew the relevant facts.

A medical device can also be defective if the manufacturer or seller unreasonably failed to provide adequate warnings or instructions for the device and the lack of adequate warnings or instructions caused the injury.[2]

Additionally, a manufacturer or seller can liable if it expressly or impliedly states that a device is safe for a particular purpose, but it is not. This is what’s known as a breach of warranty claim.

If you think your device is defective in any of these ways, you should contact an attorney to have him or her evaluate your case. The attorney will likely request your medical records and any information you have about the defective product, like the manufacturer and serial number. The defective product will need to be preserved, and if you are not in possession of the product, the attorney may send a spoliation letter to whoever has it, to ensure its preservation.

Has My Medical Device Been Recalled?

Either the Food and Drug Administration or a manufacturer may request a recall of a dangerous medical device. You can check to see if your medical device has been recalled here: https://www.fda.gov/safety/recalls-market-withdrawals-safety-alerts. You may also want to search the website of the device’s manufacturer.

Some examples of recalled medical devices:

  • Stryker Rejuvenate, ABG II and Accolade Modular-Neck Hip Stems from 2009 to 2013
  • DePuy Orthopaedics’ ASR Hip Resurfacing System and ASR XL Acetabular System in 2010
  • Boston Scientific transvaginal mesh in 1999
  • R. Bard Kugel Composix Hernia Patch
  • Zimmer Durom Cup hip implant in 2008
  • Smith & Nephew R3 Acetabular System metal liners
  • Olympus duodenoscope in 2016
  • Medronic implantable pain medication pump in 2013[3]

Should I Contact an Attorney?

Yes! If you think you have been injured by a defective medical device, you should contact an experienced personal injury attorney right away. The attorney will need to determine the applicable statute of limitations (how long you have to file your claim) and depending on the facts of the case, several statutes might apply (products liability, and wrongful death, for example.) An extended statute of limitations for defective products up to 12 years from the date of manufacture might apply, depending on notice of the defect.

For advice tailored to your specific injuries and situation, you can reach the experienced attorneys at Grimes Yeoman by phone at (704) 321-4878 or contact us online for more information.

[1] N.C. Gen. Stat. §99B-6.

[2] N.C. Gen. Stat. §99B-5.

[3] https://www.drugwatch.com/devices/