Medical Equipment Failures

Introduction

We have all heard horror stories about consumers who through no fault of their own have been hurt or otherwise suffered loss as a result of a using a product which was faulty. Consumer programmes, like the BBC's 'Watchdog,' are awash with tales of household appliances which explode or catch fire causing devastating injuries. 

Thanks to the work of consumer groups, government regulators and safety officers, defects in products, particularly medical products are promptly brought to the attention of the public, although not necessarily in every case.       But defective products still manage to slip through the net causing anything from minor annoyance to tragic accidents.  The harm caused by defective products is compounded when, in some circumstances, there has been a delay in responding to concern expressed by the public.

Consumers rely upon manufacturers to ensure that their products are safe. Consumers have no realistic way of checking whether a product is safe and this inbalance was recognised by government.  Action was taken many decades ago aimed at placing the onus on manufacturers and suppliers, to take responsibility for failures in their products.

Legislation

Legislation was introduced to impose legal responsibility for any injury and/or damage caused by a defective product. This means that there is no need for the person injured to prove fault or negligence on the part of the manufacturer. To succeed in a claim the injured person must prove simply that:

  • The product was defective;
  • They have suffered some damage and,
  • A link between the defective product and the damage suffered i.e. that it is more likely than not that the injury suffered was caused by the faulty product.

"Damage" includes death, personal injury and any loss of or damage to personal property. In general terms, "product" means any goods may include a product which is a part of another product.

If it is not possible to bring your claim under the specific legislation, there may be other ways to make a defective product claim. It is advisable to seek legal advice as to how you may be able to make a defective product claim. At IBB Claims, our defective liability solicitors pride themselves in helping clients from all walks of life to claim in respect of injury sustained arising from defective products. 

What is the definition of a defective product 

A product is defective if the safety of the product is not such as persons generally are entitled to expect, taking into account the following factors:

  • The way, and the purpose for which, the product has been marketed.
  • Any instructions for use or warnings.
  • What might reasonably be expected to be done with or in relation to the product.
  • The time when the product was supplied (that is, a product is not unsafe just because a safer product was subsequently developed, or because industry safety standards were raised after the product was supplied).

Warnings and instructions for use

Some products, like medical devices/medication for example, are obviously going to carry some risk to the consumer, such as side effects. In such cases, suppliers must include warnings to consumers about any dangers or risks you might run when using the product.

The warnings must be clear and easily understood, the producer must monitor its goods for defects at all times, and must take action as soon as it is aware of any of any potential safety problems.  The importance of making the public and others aware of the effects has been highlighted in the recent case concerning a drug for epilepsy.

Who is responsible?

Claims can be made against any one or more of the following:

The producer of the product (in most cases this will be the manufacturer).

Any "own-brander" (a person who holds itself out as the producer by placing its name or trademark on the product).

Any importer into the EU for sale, hire, leasing or any form of distribution in the course of business.

If the manufacturer or importer cannot be traced – for example, if the company is overseas or operates outside the EEA, the retailer is liable for the claim and its insurer will usually settle the faulty product claim.

Time limits

Faulty product claims fall under the area of law known as personal injury.

Personal injury claims must usually be made within three years from the date of the injury – or the date of knowledge. The date of knowledge is the date you became aware (or should reasonably have been aware) that the product in question was defective and that this had caused you injury. 

The three-year time period is modified where the compensation claimed include damages in respect of personal injuries suffered by someone who died before the original deadline expired. In this case, the period is three years from the date of death.

In the case of a child injured by a faulty product the 3-year deadline begins to run from the moment they turn 18.

There is an additional deadline to consider when a claim is being brought under specific consumer legislation, in that the claim must be brought within 10 years of the product being put into circulation. 

Examples of defective products

  • White goods are the name given to large domestic appliances, such as fridge freezers and washing machines which are found in almost every household in the country. These products are not cheap and when purchased from leading manufacturers, consumers expect these goods to conform to high safety standards. 

Alarmingly, the consumer group Which reported that household appliances (mainly washing machines and tumble dryers) are responsible for an average of 60 fires per week in the UK  

It is hard to believe that the fire at Grenfell Tower, one of the worst tragedies to occur in Britain in recent times, happened because of faulty products. The blaze which claimed the lives of 71 people and left countless others injured and homeless, was sparked by a faulty Hotpoint fridge freezer. 

A separate defect affecting 5.3 million tumble dryers under the Hotpoint, Creda and Indesit brands was discovered in 2015 and has reportedly led to hundreds of fires since 2004.

Medical products

Medication and medical devices go through very rigorous testing regimes and must conform with very strict regulations before they are tested on humans, let alone offered for sale.   However, despite this there are cases where drugs have serious unexpected side effects or has failed to work because of a manufacturing defect

The defect liability lawyers at IBB Claims are supporting clients who have been injured by a range of medical products including: the defective metal on metal hip replacements, the prescribing of sodium valproate and the Essure sterilisation implant.

Case study-Essure sterilisation device

When you chose to undergo a permanent birth control procedure, you likely do so in full faith that it will result in a safe and effective means of preventing pregnancy. Essure is a device which is implanted into the fallopian tube in order to permanently prevent conception. When it was introduced to the market Essure was touted as a quicker, simpler and less painful alternative to the traditional surgical approach to sterilisation i.e. 'having your tubes tied'.

Essure has however reportedly caused a host of serious side effects and complications in thousands of women ranging from chronic pelvic pain to death. Bayer, the German manufacturers of the product had its commercial licence to sell Essure in the EU suspended in August 2017 and decided to withdraw Essure from the market in the EU in September 2017 "for commercial reasons".

The U.S. Food and Drug Administration issued an order in April 2018 to restrict the sale and distribution of the Essure device to ensure that all women considering use of the permanent contraception device are provided with adequate risk information so that they can make informed decisions.

IBB Solicitors are currently assisting Sarah (not her real name) in investigating the pain and suffering she experienced as a result of being implanted with the Essure sterilisation device. Sarah and her husband decided in 2008 that they did not want any more children following the birth of her first child who had serious health issues. 

Sarah's GPs advised her that the Essure procedure would be perfect for her, it was quick as it did not involve surgery and was relatively pain free. 

Sarah has described the agonising pain she experienced as a result of the implant which felt like "somebody ripping my insides out". Sarah had to suffer this debilitating pain for three years before doctors relented and removed the device. It was not until 2017 when Sarah watched the Victoria Derbyshire show that she became aware of the problems with the Essure device and contacted IBB Solicitors.

How much compensation could I receive for a defective product claim

While it is not possible to give an exact figure for the compensation you will receive, the settlement in faulty product claims is generally calculated by the severity of the injury, and the impact it will have on your life. There is no formula for specific injuries; each cases is decided on its own facts.   As well as the physical impact on your life, your finances will also be considered when calculating a settlement.     This will include any loss of income if you are unable to work, as a result of your injury, and any costs you have or will incur in receiving treatment for your injury.

Our specialist product liability solicitors will provide clear advice, and after gaining an in-depth understanding of your circumstances, we’ll be able to advise you as to whether your claim is viable, and provide an estimate of what compensation you can claim.

Can I get compensation for a faulty product on a no win no fee basis?

Yes. At IBB Claims, we help clients from all walks of life to make defective product claims when they have suffered. We offer a No Win No Fee service, which means you do not to have to worry about having to pay legal fees if you lose. 

A No Win No Fee arrangement allows anyone to make a claim if they are the victims of an unsafe product, regardless of their personal finances. Call us today on 0333 123 9099 to talk to one of our solicitors about making a No Win No Fee claim

What is the process for making a product liability claim?

From the date of knowledge of a defect, you should seek advice from a legal professional with specialist knowledge of product liability claims. After gaining an in-depth understanding of your circumstances, they should be able to tell you whether it is viable to proceed with your claim. The next stage will be to gather evidence to strengthen your claim. 

Will I have to go to court?

it is unlikely that you will have to go to court, to recover compensation for the harm that you have suffered. The vast majority of cases, when over 95%, settled without the injured person having to go to court.

How long will the claim take? 

Every claim is different. Therefore, there is no specific timescale to settling the claim. Initial investigations will be required to establish whether a claim has the required merits and prospects of success. 

The more complex or serious the injury the more investigations will be required to establish the exact consequences of that injury. The timeframe can also be influenced by the other side; if the injury and the defect is admitted quickly then the claim can be resolved a lot sooner.

A general guide is that simple and straightforward moderate claims should be resolved in around 12-18 months.    An important aspect of settling any defective product claim is to ensure that the correct amount of compensation is recovered depending on the extent of the injuries sustained.     At IBB Claims, that’s exactly what our solicitors can help you to do. While we know that your ultimate goal is to be compensated with as little time involved our aim is also to help you get on the road to recovery and improve your quality of life as much as possible.

If you are the victim of a defective product, call us today on 0333 123 9099 to begin your claim or write to us at enquiries@ibbclaims.co.uk.