The medical implant industry has seen enormous growth as technology has advanced. Some operations, like joint replacements, have become routine. But sometimes an implant fails to work as advertised, or it contains a significant defect that poses serious risks to the patient’s health. In recent years a number of problems with some hip implants have caused metal fragments to escape into patients’ bodies, leading to serious side effects and large lawsuits. In such cases, an injured patient may be able to recover under a products liability theory. In other cases, where the individual surgeon improperly installed an implant, the patient may be able to recover under a professional negligence theory.
Products liability for medical implants
In an ordinary products liability case the plaintiff must show that the defendant—in the case of medical implants, most likely the manufacturer—negligently designed the product. The difficulty of a plain negligence claim is that the burden rests upon the plaintiff to prove that the defendant was negligent. That can be especially difficult in cases involving highly technical products like medical devices.
If the plaintiff can meet the requirements for a strict products liability claim, the burden shifts to the manufacturer to prove that its product was not defective. A strict liability case requires the plaintiff to make a preliminary showing of five things:
- The defendant was the manufacturer or marketer of the product.
- The product was defective.
- The product’s defect existed when it left the defendant’s possession (in other words, it wasn’t damaged by the surgeon when it was installed).
- The plaintiff used the product in a way that was reasonably foreseeable by the defendant.
- The defect caused the plaintiff’s damages.
For medical implants, many of these elements will be fairly straightforward. The most challenging one to prove will be the product’s defectiveness. That’s in no small part because the implant is inside the plaintiff’s body. Things can get easier if the implant was removed and the defect discovered after removal. In some cases the product’s defect may come to light as many other patients begin to suffer similar problems.
Professional negligence cases against surgeons and others
In some situations the manufacturer of an implant is not responsible, or at least not solely responsible, for the patient’s injury. In cases were the installing surgeon failed to follow proper procedures or made mistakes, the patient may bring suit for professional negligence (more popularly referred to as “medical malpractice”).
A professional negligence claim is based on the idea that the defendant doctor failed to use reasonable care, skill, or knowledge ordinarily used under similar circumstances by a similarly trained and experienced professional. NRS 41A.015. Among other things, the plaintiff in such a case must provide the written affidavit of a doctor who practices in a similar field to the defendant, attesting to the defendant’s negligence.
GGRM is a Las Vegas personal injury law firm
Injuries from medical implants can be painful and expensive. Working with a local law firm to resolve the issue is important for anyone suffering from implant problems. For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented personal injury clients in the Las Vegas area. Call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.