What Type of Case Do I Have?Many clients feel that they have a medical malpractice claim. However this is generally not the claim. A medical malpractice claim is against the doctor who conducted the procedure or operation. Unless the doctor or surgeon was negligent, you will not be able to pursue a medical malpractice claim. Instead your recourse will be in the way of a product defect or product liability claim. Our office will evaluate all medical records before we make this determination. If it shown that the doctors were negligent in the installation of the device, then a medical malpractice claim is plausible. Although if the injuries were not from the surgical operation, but because the product was defective, then you have to pursue a case against the device manufacturer. A detailed explanation of product liability cases against manufacturers are discussed below.
Who Is Liable?Liability is generally imposed on the manufacturer of the product. When a manufacturer produces a defective product they will be held liable. In fact any commercial seller within the chain of distribution will be held liable. This includes manufacturers, re sellers wholesaler and other suppliers. A product can be considered defective for various reasons. It can be a (1) design defect; (2) manufacturing defect; or (3) failure to warn defect. Each of these are discussed in detail below.
- Design defects refer to an inherent design flaw in the product. A design defect exist when the prototype, which the product was designed from is defective. Therefore making all similarly designed products defective.
- Manufacturing defects refer to those that occur during the assembly phase of the product. With respect to Stryker metal on metal hip implants, it does not appear that a manufacturing issue is to blame.
- Failure to warn defects are those which arise from the manufacturer not warning or informing its users of all potential risks. Failure to warn against the potential metal poisoning would be considered a failure to warn issue.
- Loss of income
- Loss of services
- Pain and suffering
- Medical bills
- Future loss of earnings