October 21, 2014 by Steve Levine

How to Handle Medical Device Injury Cases

Photo Credit: LSAF Media. All Rights ReservedIf you have had surgery where a medical device was used or implanted, and suffered injury as a result, you can seek compensation for the injury. The compensation you receive from litigation against the manufacturer can cover existing medical bills, pain and suffering, as well as future revisionary surgeries. In particular, devices that have been recalled (either voluntarily by the manufacturer, or by the F.D.A.) are nearly always eligible for compensation where there is clear defect with the device or its use. The Food and Drug Administration maintains a list of all recalled medical devices, so your first step should be to check for a recall of the device that caused you injury.

Most of the devices that are subject to class action status are recalled devices that are implanted in the body. These include hip and knee implants, spinal fusion implants, and surgical mesh. These cases are the ones that are most often litigated through class action lawsuits, because there is a large group of people who have all received the implants, and who all are at risk of current and future side effects. Mass tort attorneys take these cases on behalf of individual victims or “classes”, and either negotiate an out-of-court settlement with the at-fault companies (typically household names like Pfizer or Johnson & Johnson), or litigate the cases on behalf of the class and work towards a jury trial verdict in favor of their clients. Unlike bad drug cases, a much larger percentage of device defect cases are resolved prior to a jury or bench trial. Some legal experts believe that is because there is less variety in the side effects reported by victims compared to medications, while other attorneys believe the household-name companies wish to avoid the bad publicity of a trial. Either way, the mass tort litigation arena is a multi-billion dollar industry, and victims of bad device side effects can be well-compensated for their injuries.

To make sure that you maximize your compensation if you are a victim of a defective medical device, there are a few important steps you should follow.

Get Proper Medical Attention, And Document It

The first step in resolving a medical device claim is to get the necessary medical attention, and document it. The more organized and complete your paperwork is, the better case your medical device attorney can present to the company responsible. Some people think (erroneously) that if they have “too much” medical care, than it hurts their case. When it comes to medical devices, there is no such thing as “too much care”, especially where revisionary surgery is a common outcome from a bad device. Get all necessary care, and make sure you involve specialists whenever possible. Your eventual settlement will be higher if you have documented treatment, rather than trying to “tough it out”, which is not compensable the way medical bills are.

After your doctor has ascertained your condition, the severity and the extent of the injuries, likelihood of future medical care or surgery, and your chances of recovery, you will have a clearer view of what amount it would take to make you whole.

Calculate Special (Economic) Damages

Special damages or economic losses are damages for which a direct and precise monetary value can be assigned. Known as the “out-of-pocket loss” rule, special damages include things like:

  • Lost or reduced wages
  • Decreased earning capacity, current and in the future
  • Medical expenses and expenses for special equipment
  • Funeral and burial expenses where death was a result
  • Revisionary Surgery

Special damages are separate and in addition to compensation for things like pain and suffering and reduced quality of life, which are harder to calculate. . Keep all records of past medical expenses, prescription medication costs (even if covered by health insurance),lost wages and future care expenses you may need – all of this will help in calculating the special damages that you are entitled to compensation for.

Consult an Attorney

Some victims feel they will have an easier time settling their device case, or will recover more if no attorney fees are included, if they attempt to negotiate a deal themselves. This is almost never true. Medical device litigation is some of the most complex cases involving deep-pocket pharmaceutical companies who have the upper hand. Some companies will not even negotiate with a potential victim unless the are represented by competent legal counsel. Because mass tort attorneys work on a contingency fee, there is no real up-front cost to engaging them to represent you, and the difference in eventual settlement amounts will almost always exceed what a victim would have received even without the contingent attorney’s fee. Class action cases cannot be handled without an attorney (as the lead counsel is presumed to be acting on behalf of all victims, not just the ones who are his clients), and most federal courts where these cases are handled have very specific rules about licensed attorneys presenting the cases.

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