Does the fact that a knee failed in 60 days constitute a gross failure that is actionable?
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Does the fact that a knee failed in 60 days constitute a gross failure that is actionable?
I had a partial knee in August 2016. By October 15, the plastic bearing was loose and sliding around in my knee totally leaving me unable to walk. New Link Destination
tal knee revision and replacement done on Nov. 9, 2016. Is such a gross failure a case that the manufacturer would rather not see litigated and offer a settlement
Asked on December 22, 2016 under Malpractice Law, South Carolina
Answers:
S.L,. Member, California Bar / FreeAdvice Contributing Attorney
Answered 7 years ago | Contributor
It is in the manufacturer's interest to settle the case rather than incur the costs of litigation.
The manufacturer is liable for both negligence and strict liability.
Negligence is the failure to exercise due care to produce a product that is not defective.
Strict liability is liability whether or not due care was exercised.
When you complete your medical treatment and are released by the doctor or are declared by the doctor to be permanent and stationary, which means having reached a point in your treatment where no further improvement is anticipated, obtain your medical bills, medical reports and documentation of wage loss. Your claim filed with the manufacturer's insurance carrier should include those items.
Compensation for the medical bills is straight reimbursement. The medical reports will document the nature and extent of your condition and will be used to determine compensation for pain and suffering which is an amount in addition to the medical bills. Compensation for wage loss is straight reimbursement.
If the case is settled with the manufacturer's insurance carrier, NO lawsuit is filed.
If you are dissatisfied with settlement offers from the manufacturer's insurance carrier, reject the settlement offers and file a lawsuit for negligence and strict liability against the manufacturer. Negligence and strict liability are separate causes of action (claims) in your lawsuit.
If the case is NOT settled, your lawsuit against the manufacturer must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.
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