Is It Products Liability or Medical Malpractice?
In any case in which you are suing a doctor or a hospital in connection with an injury caused by a medical device, you may also have a claim for medical malpractice. The legal basis for a medical malpractice claim is somewhat different from a defective product claim. (To learn more about legal theories for product liability claims and medical malpractice cases, read Nolo's articles Defective Product Claims: Theories of Liability and Medical Malpractice Basics.)
Fortunately, you don't have to choose. As long as they have a reasonable legal basis, you should include every available type of legal claim in your complaint.
Proving Your Claim
You will have to prove three things in order to win your lawsuit:
- you were injured
- the medical device was defectively designed or manufactured or defectively "marketed" (as discussed above), and
- the defect or improper marketing was the cause of your injury.
In medical device cases, the outcome usually revolves around the second and third issues. (For a more detailed discussion of what you must prove in any defective product claim, read Nolo's article Proving a Defective Product Liability Claim .)
How Long Do I Have To File My Lawsuit?
Every state sets certain time limits, called the "statute of limitations," on bringing product liability claims. Be sure to find out the statute of limitation in the state where you are bringing your claim. (To learn more about these time limits, read Nolo's article Time Limits for Filing a Defective Product Liability Claim. For the time limit to bring injury lawsuits in your state, see Nolo's article Chart: Statutes of Limitations in All 50 States.)
Class Action Lawsuits
If others have been injured by the same medical device you used, you may be able to file a class action lawsuit. Sometimes, a class action has already been filed and you may be able to join in the lawsuit. Joining an existing class action has several advantages:
- the lawyers for the class, who may have considerable experience and expertise in bringing big cases against big companies, will become your lawyers as well
- there will likely be little or no upfront cost to you, and
- you will not have to sort out potentially complex legal issues, such as where to file your claim.
You may also bring your own lawsuit instead of joining the class action. This may be appropriate if your injuries are substantially different from those of the other people in the class action, or if there are special circumstances in your case.
Consider consulting with a lawyer to find out if there is an existing class action concerning the medical device that injured you, and if so, whether it is advisable for you to join. Such initial consultations are usually free of charge. You may also contact the lawyers for the class action directly -- they will most likely be interested in talking with you.
The legal and medical issues in medical device cases are typically complex and sophisticated and usually aren't easily handled without an attorney. If you wish to retain the services of a lawyer who specializes in products liability (and perhaps even one who specializes in medical device cases), read Nolo's article Finding a Personal Injury Lawyer. Or, go to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click "Types of Cases" and "Work History" to find out about the lawyer's experience, if any, with products liability and medical device cases).