Medical devices are supposed to provide relief, but sometimes they can end up causing incredible amounts of harm. A defective device can cause new injuries and complications to existing conditions. Infection, nerve damage, and irreparable damage to bodily organs and appendages are all possible.
In these situations, victims must often turn to an experienced defective medical device lawyer to take up their case and fight for compensation for the harm caused. A successful claim can result in a settlement to repay all associated medical bills, lost wages, out-of-pocket costs, and other financial damages caused by the device. This may include future expected medical bills and lost earning potential if you become permanently unable to return to work. Non-economic damages — such as compensation for pain and suffering, mental anguish, and loss of enjoyment of life — may also be available.
Families who had to endure the tragedy of their loved one passing on due to their defective device injuries can pursue a wrongful death claim or survival action to recover all of the above damages. In addition, they may be eligible for funerary costs, burial costs, lost earning capacity, and more in light of the damages they have personally suffered.
Auger & Auger Accident and Injury Lawyers have provided families with skilled defective medical device attorneys in their time of need for over 26 years. We want to represent your case and help you explore all legal options available for obtaining the compensation you deserve.
Speak to a knowledgeable defective medical device lawyer for free during your initial consultation. There’s no obligation, so schedule your free appointment when you call 800-559-5741 or contact us online.
Device Manufacturers Are Liable for Their Defective Products
Defective product laws allow individuals to obtain compensation from the manufacturer, distributor, or retailer of products that are known to be defective and harmful. Some states, like North Carolina, use the same standards of proof for defective products as they do for negligence. Plaintiffs must prove that the manufacturer somehow breached their duty of care in a way they should have foreseeably known would directly cause harm.
However, unlike many other types of personal injury cases, a defective products claim in most other states does not have to prove that the defendant knew about the harmful condition or that they were negligent. Instead, an injury victim must prove that the device was defective and caused harm. This notion is known as “strict liability.”
The state you file your injury claim or lawsuit in, therefore, can significantly affect the proceedings of your case. Types of defects commonly discussed in these cases include:
- Design defect: The design of the product itself or the materials used were inherently dangerous, meaning harm was inevitable
- Manufacturing defect: The product was created using sub-standard manufacturing practices, either as a pattern or as a one-time event
- Marketing defect: The device was likely to be misused or used without knowledge of its risks given the nature of its marketing
To prove that the device was harmful, the victim must also prove that:
- The medical device was used as intended by the manufacturer
- Harm occurred as a direct result of the use of the medical device
- The patient suffered damages which the manufacturer should provide financial compensation for
How a Defective Medical Device Lawyer Pursues a Case
Upon the start of your case, your attorney will seek to build a narrative of when your injuries occurred, the extent of damages those injuries caused, and how those injuries were related to the device in question. Then, they will examine what defects made the device harmful and the best way to pursue a case based on those facts.
While plaintiffs in most states (outside North Carolina) may not legally be required to prove that a company knew their device was harmful or that there is a pattern of defective devices of the same make and model, providing evidence of negligence can strengthen a case tremendously. Your attorney will work hard to uncover evidence that the manufacturer or company in question caused similar harm to other victims. They will also pursue evidence that the company was somehow aware of the defect and the harm it would cause, increasing the likelihood of a favorable outcome for the plaintiff.
Expert witnesses are often used in these cases to attest that the defective medical device directly caused the harm to the patient. Often, defending parties will allege that the injuries were the result of or made worse by factors outside the use of the device. In some cases, they may claim that you failed to follow instructions for using the device. Your lawyer will work to contradict these claims, providing evidence or testimony linking your injuries to the device and noting your correct usage of it.
The majority of successful defective products and personal injury cases will result in a settlement between the injury victim and a company — or, more likely, their insurers. A minority of cases will proceed to a lawsuit, arbitration, or trial. If a court decision must be made, the compensation that comes from the award is decided upon by the jury or judge.
How Long Will It Take to Settle My Claim?
The answer to this question is highly variable, as it is affected by many factors. This includes the strength of your case, the other party’s desire to fight the lawsuit, the particulars of the case, and many other elements often out of your control. In general, if the other party is amenable to settling, the process may go more quickly – in some cases, it may take as little as a few months. However, there are some situations where they may not be willing to settle at an amount you consider acceptable. If the other party rejects attempts at negotiation or the parties can’t come to an agreement both sides are happy with, the case will eventually go to trial, which takes more time. Sometimes, it may be a year or more before a trial can be completed, depending on the length of the negotiation process and how full the court docket is.
What to Do If You Suspect You Have a Defective Medical Device
- Immediately seek medical treatment and testing for any symptoms you’re currently experiencing. The earlier you can reach a doctor, the better. Keep copies of your medical records as well.
- Report your symptoms accurately, and ensure they are listed on your medical documentation. You may need tests or images to fully document your condition.
- Contact a defective medical devices attorney. They will evaluate your case and determine whether similar cases have resulted from the same medical device.
- Avoid talking to insurers, lawyers representing the device company, or healthcare providers when possible. Look to advice from your attorney when making a statement or answering questions that could affect the outcome of your case. Remember that you are not required to talk to anyone until you are ready.
Many Defective Medical Devices Have Ongoing Litigation
Depending on the nature of your case, you may have the advantage of simultaneous claims or class-action lawsuits against the same device that caused you harm.
Examples of defective medical products that are known to have resulted in settlements and favorable court rulings include:
- Metal hip replacements
- Hernia mesh
- Transvaginal mesh
- Stryker hip replacements
- Power morcellators
- Bair Hugger Warmer Blanket
- IVC Filters (Bard & Cook)
- Allergan breast implants
- Certain contraceptive devices
- Some cochlear ear implants
- Recalled CPAP devices
- Talcum powder
- Guidant heart defibrillator
- IVC filters
- Cypher stent
- Calaxo bone screw
- Surgical scopes and staplers
- Insulin pumps
What if My Device Isn’t on the List? Does That Mean It’s Not Defective?
No. The above is just a list of devices that have been involved in recent litigation. It’s always possible a new device is causing problems, and the issue hasn’t been discovered yet. At the same time, there may be other explanations for your symptoms too, so it’s important to have your case reviewed by a legal expert. If you believe you may have been harmed by a medical device, please consult a Charlotte defective medical device lawyer right away.
Medical Malpractice or Defective Device?
In many cases, it isn’t always apparent to the patient whether their difficulty is from a defective device or some mistake that a medical professional made when implanting it. Sometimes it can take an attorney a little time to sort this out. In general, if the doctor implanted the device based on the manufacturer’s instructions, following the usual standard of care, and did not make any errors during the surgery, it’s unlikely that the situation is due to medical malpractice. However, the device itself might be the issue and you could have a claim with the manufacturer. But if the doctor implanted the device incorrectly, used it for a problem it wasn’t designed to treat, or instructed the patient to use the device in ways that weren’t safe or recommended, then there may be ground for a malpractice claim. Your attorney can help you sort out what went wrong and seek compensation from the liable party or parties.
Sometimes, clients come to us believing their doctor is at fault for implanting the defective device in the first place. This line of thought makes sense – the doctor is the person who recommended the device and implanted it for the patient. But in many cases, the doctor had no idea the device was defective or would cause harm. They may have used the same item successfully in other patients and were unaware of any problems at the time. In fact, if the defect was due to a manufacturing error affecting a single batch, the doctor may have been using the device without incident for years. Unless you can prove that the healthcare provider knew or should have known the medical device was faulty, your lawyer will probably advise you to focus on the device manufacturer.
What Is the Statute of Limitations for Defective Medical Device Claims?
In North Carolina, there is a six-year statute of limitations on product liability claims, including bad medical devices. Medical malpractice claims can be a bit more complicated. The state considers that many people are unaware of medical malpractice when it happens, in the same way that you may not be aware your medical device is defective the minute you start using it. You have one year to file a medical malpractice claim following the “reasonable discovery” of your injury from the device. This is further complicated because some patients struggle to get a diagnosis when having symptoms from such a device. If a medical item isn’t already known to be defective, sometimes doctors may brush off patients’ symptoms as “all in their head” or “anxiety.” For this reason, it may be difficult for the patient to figure out what’s wrong and why, and they might be in pain or suffering other symptoms for several years before finding the cause.
What does all this mean for your claim? Your lawyer will be able to advise you on your specific situation. In some cases, they may be able to argue to the court that you discovered the problem as soon as you reasonably could, given the circumstances.
Speak to a Defective Medical Device Injury Attorney at Auger & Auger Accident and Injury Lawyers
Time is of the essence for most defective medical device cases. Injured patients often have a better chance of proving the harm the device caused if they act soon after their condition is noticed. There is also a statute of limitations that prevents most legal action or claims from taking place after a certain period of time, which varies from state to state.
The accident and injury lawyers at Auger & Auger can help you and your family get your case started quickly, allowing us to gather the evidence to put forth a strong claim or file a lawsuit on your behalf.
To talk to an attorney about your injury and your experience with your defective medical device for free, call 800-559-5741 or contact us online.
