What do I do if there is a recall on a medical device implant and I have experienced problems with it?
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What do I do if there is a recall on a medical device implant and I have experienced problems with it?
Asked on April 11, 2012 under Malpractice Law, Arizona
Answers:
S.L,. Member, California Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
This area of law is called products liability. You can sue the manufacturer for negligence and strict liability. Negligence and strict liability are separate causes of action (claims) in your lawsuit.
Negligence is the failure to exercise due care (that degree of care in this case that a reasonable manufacturer would exercise to produce a product that is not defective).
Strict liability is liability whether or not due care was exercised.
Prior to filing your lawsuit, it may be possible to settle the case with the manufacturer's insurance carrier. You should obtain your medical bills, medical reports and documentation of any wage loss. These items should be due to the problems you have experienced with the medical device. Your claim filed with the manufacturer's insurance carrier should include your medical bills, medical reports and documentation of any wage loss. Compensation for the medical bills is straight reimbursement. Compensation for wage loss is straight reimbursement. The medical reports will document the nature and extent of your injuries and will be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills. If you are dissatisfied with settlement offers from the manufacturer's insurance carrier, reject the settlement offers and file your lawsuit for negligence and strict liability against the manufacturer. If the case is settled with the insurance carrier, NO lawsuit is filed. If the case is NOT settled with the manufacturer's insurance carrier, you will need to file your lawsuit against the manufacturer for negligence and strict liability prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.
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