In some ways, a medical device recall is similar to an automotive recall: Once the manufacturer becomes aware of a defect in its product, it issues a recall — either voluntarily or under orders from the government. But the differences between the two types of recalls are hard to miss.
Car owners know what to do when they learn that their automobile is subject to a recall: They simply schedule a trip to the mechanic. Typically, the manufacturer pays for the repair.
What can a person do if their medical device, such as an artificial hip joint, is recalled? Taking a car to a mechanic may be inconvenient, but it isn’t nearly as invasive or risky as having an artificial hip joint replaced.
Artificial joint recalls
It’s fairly common for older Americans to seek out an artificial joint replacement to solve problems with their knees, hips or other joints. In most cases, the surgery goes well, the device works as it should and the patient has improve mobility. Unfortunately, there are cases in which something goes wrong with the artificial joint itself.
In some cases, the defect can lead to dramatic failures of the devices. This is the case for hundreds of people whose Profemur artificial hips suddenly snapped in half.
In other cases, the problem is more subtle. An ongoing lawsuit against the makers of Exactech artificial joints involves allegations that poor packaging for the devices caused plastic parts to oxidize once they were inside the patients’ bodies. This oxidization causes the plastic to deteriorate, shortening the useful life ot the devices, which can mean the patient must have them replaced.
Of course, repairing or replacing an implanted medical device requires surgery, which comes with inherent risks for the patient. And the nature of joint replacement means that each surgery carries an increased risk of bone loss.
Legal action
It’s great that manufacturers pay to replace their defective medical devices, but that doesn’t compensate a patient for everything they have lost as a result of being injured due to the device. It doesn’t compensate them for the pain they suffered, or the pain they will continue to suffer in the future as a result of the defect.
To be fully compensated for these and other losses, the injured may need to make a claim against the manufacturer. To do this, they may file a personal injury lawsuit on the basis of product liability.
Product liability is a legal theory that holds manufacturers and others liable for the damages of consumers who are hurt by their defective products. To successfully pursue a product liability lawsuit, the plaintiff must show that the makers were negligent in the design, manufacture or marketing of the product, that the product injured them and caused their damages. If they can do all this, the manufacturer can be held liable.
