Answers To The Most Frequently Asked Questions In Medical Implant, Device And Drug Cases

1. Who can sue in a medical implant, device and drug case?

Any person who has been injured or the survivors of a loved one who has been killed as a result of a defective medical implant, device or prescription drug can bring a lawsuit if they can establish fault on the part of the manufacturer, supplier or seller of the device or the physician(s) who inserted the device or prescribed the drug if they can establish negligence of the physician.

Both minors and adults can bring medical product and drug cases.

2. Who can I sue in medical implant, device and drug cases?

A number of different persons and entities may have exposure for liability in medical implant, device and drug cases. This would include the manufacturer, supplier or seller of a negligently designed or manufactured product if the plaintiff can establish the fault of one of these defendants.

Further, you can bring a lawsuit against a physician, other health care provider or hospital that implanted a medical device or prescribed a dangerous drug if the plaintiff can establish that it was below the standard of care for the health care provider to implant the device or prescribe the drug.

However, unless it can be established that the physician knew of the risk of the implant or drug or that the implant or prescription was contraindicated given your condition, you will have a very difficult time winning the case against a health care provider.

3. I have heard that California product liability law favors injured plaintiffs. Is this also true for medical products including prescription drugs?

No. The courts in California, as a matter of public policy, have made it more difficult for plaintiffs to prevail in medical product cases than almost any other type of product case.

In other product liability cases, all a consumer has to prove is that the product was defectively designed. If the consumer can prove the product was defectively designed, there will be strict liability under the law.

However, in medical implant, device and prescription drug cases, there is no strict liability for defective design and a plaintiff must prove that the product was negligently manufactured or designed.

4. Isn't it hard for somebody like me to take on the big drug companies and manufacturers of medical implants and devices?

Yes, absolutely. Because you must establish negligence in the design and manufacturing process of the product, it becomes virtually impossible for one person alone to take on a drug or medical product manufacturing company. The case will cost millions of dollars, and perhaps tens of millions of dollars to pursue.

5. So how does a plaintiff ever win a case against a drug or medical product manufacturer?

With rare exceptions, a plaintiff can only prevail in a case against a drug or medical product manufacturer if thousands of other plaintiffs were also injured by the drug or product and the attorneys in those cases ban together to share expenses and spend the time that it takes to even begin to equal the resources of the drug and product manufacturers.

6. What exactly must I prove to win a case against a prescription drug company?

You must prove one of the following:

  1. Something went wrong in the manufacturing process so that the drug was not prepared or manufactured as it was intended to be manufactured.
  2. The drug was not accompanied by a warning of dangers that the manufacturer knew or should have known at the time the drug left its control; however, a warning to the prescribing physician is sufficient.

7. I have heard that causation can be a difficult issue in defective medical implant, device and drug cases. Why?

To prove causation in a legal case, you must prove not only that the product was negligently designed, manufactured or prescribed, but also that it caused your injury; i.e., that it was a substantial factor in your injury.

This will be a very complicated and hotly contested issue in drug and implant cases. The breast implant cases are a good example of this phenomenon. The implant manufacturers claim that although the implants they manufactured were defective, the defects did not cause any significant injuries while plaintiffs claim that their lives have been destroyed by the defective implants.

The only way that plaintiffs are going to prevail on causation is if there is scientific evidence that the drug or implant causes the disease from which the plaintiff suffers.

8. Is investigation necessary in medical implant, device or prescription drug cases?

Yes, absolutely, although it is different than investigation involved in other cases. Of course, information regarding the product should be obtained and maintained such as the product itself and warnings. However, investigation in product and drug cases really focuses more on research than typical investigation. It is critical that a plaintiff's attorney learns of all of the scientific research regarding the risks of the product and its causal connection to various disease processes.

9. Is it necessary to obtain expert witnesses in medical product and drug cases?

Absolutely. Plaintiffs will not only have to do the research but will also have to retain the experts who have performed the research to testify on liability and causation issues and, further, plaintiff's doctor or a doctor who specializes in the disease process must testify that they believe that plaintiff's problems are due to the product or drug at issue.

10. What damages are recoverable in a medical product and/or drug case?

Under California law a plaintiff who has been injured by a medical product or drug is entitled to recover all of his or her past and future medical expenses; past and future loss of income/earning capacity; past and future pain, suffering and emotional distress and in cases in which the defendant's conduct is particularly bad, punitive damages the excess damages which are awarded to punish the defendant.

If a person dies as the result of a defective medical product or drug, the survivors can recover monetary damages for their economic losses and emotional distress damages for loss of society, love and comfort.

11. Will my case settle out of court?

If you are part of a large number of plaintiffs, there is a high probability that your case will settle before trial. If you are not and there are no, or few, similar cases, there is a probability that your case will not settle for a significant amount of money unless you can demonstrate that the product or drug that injured you was not manufactured as intended or you can prove a failure to warn.

12. Do I need to retain an attorney in a medical device, implant or drug case?

Absolutely. You will either need to join a class already represented by an attorney or find a private attorney who is willing to take on your case.

Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this website, research other legal articles and texts on the subject matter or consult with an attorney.