Many times doctors will prescribe medicines or medical procedures which later turn out to be defective and the subject of a product recall.
In the last few years, the recall of medical devices has increased tremendously, particularly for the prosthetics used in joint replacement surgeries.
The classic example of a medical product recall involves the silicone filled bags that are surgically implanted during breast augmentation surgeries. The bags were later found to be leaking, causing severe and lifelong problems. It was the breast augmentation litigation in the 1970’s and 80’s that really started and focused the litigation community on defective products and the resulting lawsuits from them.
If you think you have taken a medicine or had a particular prosthetic medical device put into you that is causing problems or has been the subject of a recall, here are some suggestions for how to proceed.
1. Determine product recall vs. product warning
The first step is to identify whether the particular product or medication you are taking is the subject of a recall or simply the subject of a warning. Complaints about these medications are usually received and tested by the Federal Drug Administration (FDA). Their determination may or may not be final in determining whether or not their product should be recalled or simply have an enhanced set of warnings for future use.
Most of the time, lawyers are going to be ahead of the curve in identifying troublesome medicines or medical products even before there has been an official recall.
2. Contact attorney(s) of class action lawsuit
The second step, if you determine there is a recall, is to contact an attorney or attorneys who are handling the victims as a class. This means that all of the victims throughout the country who have been injured as a result of the product are grouped together. Within this group, there are test cases conducted to determine liability. If a majority of the test cases determine that the product is indeed defective, usually the manufacturer of the product and the plaintiff’s attorney or group of attorneys bringing claims will enter into a settlement negotiation.
A class settlement for a product of medical recall usually involves a determination of the extent and amount of injury to the claimant. From there, a dollar figure for compensation is determined. In general, the worse the injury, the higher the compensation amount
For example, in the case of the silicone breast implants, there was a different dollar figure for each of the following scenarios: implants that had to be explanted, implants that leaked, but didn’t cause any diagnosable illness, implants that leaked and did cause a diagnosable illness, implants that leaked and caused diagnosable injuries that resulted in permanent or partial disability, and so on.
Additional considerations with these kinds of claims:
1. Recall medication and recall medical products usually have two different processes by which the victims of these products can be compensated.
2. The categories of recalls fall into new products vs. revisions of older products. For example, there are certain hip replacement prosthetic devices that, although are the basis for a product recall, may or may not be subject to class action filings for purposes of compensating victims.
3. You may have an independent malpractice action against the medical provider who either prescribed or installed the medication or device if they knew or should have known about the defect at the time of the treatment
4. Certain claims have statutory limitations in terms of the time by which the claim must be filed in order to preserve it. In determining whether or not you have a claim that is timely, it is always best to consult an attorney who has experience in these types of cases.