We Count Success in Dollars

Where medical malpractice and defective products collide

Medical devices are increasingly important in American lives. As many of us are living longer, we often rely on implants to replace worn joints, pacemakers to regulate our heartbeats, and many other devices meant to keep our bodies running properly. The designers of these devices have made tremendous strides over the years, but unfortunately, there are times when bad products go to market, and their defects are not discovered until after they have been implanted in patients — sometimes in thousands of patients.

When patients are harmed by defective medical devices, they may seek compensation through a legal theory known as product liability. These cases work in a way that is similar to lawsuits involving any other defective device, such as dangerous toys, faulty airbags in cars or a battery that is prone to catching fire, but since these cases also involve surgeons, they can sometimes raise issues of medical malpractice as well.

Spinal implant

An upcoming trial involving a spinal implant illustrates some of the complexities of these cases.

According to a news report, a woman has filed a lawsuit against medical device manufacturer Life Spine Inc., its distributor and sales representatives after she says she suffered damage to her nerves and numbness in her leg due to a defectively designed and marketed spinal implant. According to her complaint, her surgeon did not discover until he had already cut into her spine that the Life Spine implant he intended to put in her back was the wrong size. The surgeon had to patch her up, get ahold of a correctly sized implant, and perform surgery again several days later. The woman says the operations left her permanently injured.

What’s unusual about her case is that it focuses on the implant maker’s marketing program, in which sales representatives promote the products to surgeons. This is a common practice in medicine, not only for medical devices but for pharmaceuticals and other products. Because there are so many devices available, doctors often rely on these sales representatives to teach them about proper use of their products.

This combination of marketing and medicine raises difficult legal issues after a patient is injured. Who can be held liable when an implant surgery goes wrong, the doctor or the device maker? In some cases, both may be held liable.