If I Received a Defective Medical Device, How Do I Prove It?

Receiving a defective medical device can have major consequences. Serious infections, internal injuries, and the need for revision or replacement surgery are all very real risks. It is because of these risks that medical device manufacturers are required to take steps to avoid selling defective products—and that patients and their families can hire a defective medical device attorney to seek accountability when necessary.

Seeking to hold a manufacturer accountable for selling a defective medical device starts with proving that the device was defective. So, if you received a defective medical device, how do you prove it?

5 Key Steps for Proving that a Medical Device is Defective

Proving that a medical device is defective is a multi-step process, and each step requires experienced legal representation. With this in mind, here are some of the key steps involved in proving that you have grounds to file a claim for just compensation:

1. Hiring an Experienced Defective Medical Device Attorney

If you are concerned that you or a loved one may have received a defective implant, your first step is to hire an experienced defective medical device attorney. Assessing your legal rights requires a comprehensive investigation, and if you have a claim, you will be going up against the manufacturer’s insurance company and defense attorneys. As a result, you need an attorney who can assert your legal rights effectively.

In this scenario, hiring an attorney should not cost you anything out-of-pocket. You should be able to hire an attorney on a contingency-fee basis, which means you will only pay legal fees if your case is successful.

2. Reviewing Your Medical Records From Before and After Your Procedure

Once you hire an attorney to represent you, your attorney will review your (or your loved one’s) medical records from before and after the relevant implant procedure. This medical review serves a few key purposes:

• It proves your (or your loved one’s) condition prior to the implant procedure;
• It proves that you (or your loved one) received the medical device at issue; and,
• It provides evidence that the medical device at issue is to blame for your (or your loved one’s) current medical condition.

If you have access to your (or your loved one’s) medical records, you should gather copies to have with you during your free initial consultation. If you don’t have access or if you can’t locate your copies, that’s okay—your attorney will be able to obtain all of the records he or she needs.

3. Determining if There is an Ongoing Mass Tort Case Involving the Device

In many cases, defective medical devices are the subject of ongoing mass tort litigation. Mass tort litigation involves multiple plaintiffs (in many cases hundreds or thousands of patients and family members) all pursuing similar claims against the same medical device manufacturer.

If your (or your loved one’s) medical device is the subject of ongoing mass tort litigation, you may be able to join the litigation instead of suing the manufacturer independently. Today, most mass tort cases involve multidistrict litigation (MDL) rather than class action lawsuits. While there are several important differences between MDL proceedings and class action lawsuits, one of the most significant is that plaintiffs in MDL proceedings can seek full compensation for medical bills, lost earnings, pain and suffering, and other losses.

4. Obtaining Internal Records from the Medical Device Manufacturer

Whether you are eligible to join an ongoing mass tort case or you need to file an independent lawsuit, proving liability will involve obtaining internal records from the medical device manufacturer. While medical device manufacturers won’t voluntarily provide access to these records, they can be compelled to do so through litigation.

Some examples of internal records that medical device manufacturers can be compelled to disclose include:

• Design and manufacturing records;
• Testing records and records from clinical trials; and,
• Inspection and quality control records.

In many cases, manufacturers will choose to settle rather than provide access to records that prove they knew (or should have known) their devices were defective. While there are no guarantees, many successful medical device cases settle, and your attorney will work to secure a favorable settlement on your behalf.

5. Engaging Experts to Explain Why the Device is Defective and How it Harmed You

Another key step in proving that a medical device is defective is engaging relevant subject-matter experts. This can include both experts in medical device design and manufacturing processes, as well as medical experts who can explain how the device in question harmed you or your loved one.

Hiring experts and working with them to prove your claim is another step in the process that requires experienced legal representation. An experienced defective medical device attorney will have working relationships with several experts who can be trusted to provide clear, unbiased opinions and to testify effectively in court if necessary.

Proving the Costs of Your (or Your Loved One’s) Defective Medical Device

Along with proving that your (or your loved one’s) medical device is defective, another key step in the process involves proving the costs of the defect. Patients and families are entitled to just compensation for the financial and non-financial costs they incur due to the implantation of defective medical devices.

Proving the financial and non-financial costs of a defective medical device also requires experienced legal representation. If it appears that you have a claim, your attorney will be able to take the necessary steps to document the costs you are entitled to recover.

Schedule a Free Consultation with a Defective Medical Device Attorney at Searcy Denney

Do you need to know more about filing a claim for a defective medical device? If so, we invite you to contact us for a free, no-obligation consultation at Searcy Denney. To speak with an experienced defective medical device attorney in confidence, call us at 800-780-8607 or tell us how we can reach you online today.