Bulletins

Defective medical products

September 18, 2016

These days medical treatment is so advanced that things like knee and hip replacements are commonplace.  The medical term is a prosthesis, which essentially means an artificial device used to replace a missing body part, such as a limb, tooth, eye, or heart valve. As with any manufactured product, it follows that a prosthesis can fail prematurely and when that happens, it can endanger the health of the patient, cause increased pain and there will be a need to undergo further surgery to replace the defective product.

Defective products are covered by the Consumer Protection Act 1987 and if it is proven that the product was defective, there is no further need to prove negligence, or fault.  This is called strict liability.  However, this does not mean that every case arising as a result of a defective product will be successful.   Some products are considered to have an acceptable risk of failure, for example condoms splitting.  To prove liability where there is an acceptable risk of failure, it is necessary to establish that the product has failed because of a specific defect, which did not fall within that acceptable risk of failure.  Some products are not expected to fail at all and there is no acceptable risk.  For example, blood transfusions, where it is expected that the blood being given is safe.

As with any personal injury claim, there is a three year limitation period within which the case must be brought.  In the case of a defective product, there is also a 10-year long-stop provision.  This means that if any product has been in circulation for more than 10 years, then no claim can be bought even if it is defective and has caused injury.  This will cause difficulties if a product is made a few years before it is actually used and then a few more years will pass before it becomes known that the product is defective.  It can severely shorten the time you have to bring a claim.  It is important therefore to seek legal advice as soon as you believe a product is defective.

There are two issues to consider with defective products.  The first is whether the prosthesis has failed only because it has not been fitted properly by the surgeon and otherwise would have worked properly.  The second is where the fault lies with the product itself.  If the surgeon fitting the prosthesis tells you he followed the advised method when implanting the product and it is only because the product has failed to do its job properly that injury has occurred, then a patient’s recourse may be against the producer or supplier of the product itself, rather than the hospital that fitted the device.   It can be difficult to determine which of these two issues applies, particularly if the surgeon and manufacturer/supplier are each blaming the other. 

Here at Metcalfes, our specialist team of medical negligence lawyers have experience of dealing with this type of case and are currently dealing in particular, with a number of defective metal on metal hip replacements, where products have been recalled and revision surgery is necessary.  

If you believe that you or a member of your family has suffered as a result of medical negligence or have been fitted with a defective medical product, please contact us on 0117 239 8012, or email us by using the online contact form and we will be happy to discuss your potential claim with you.

References and further reading:

Website content note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

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Defective medical products

Gillian Clark

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