So What’s the Difference?

Medical malpractice is the legal term for a doctor who has been negligent. This means that the doctor failed to perform the surgery with an expected degree of care and competence. In a phrase, the doctor simply screwed up the surgery. For a plaintiff to win a medical malpractice claim, he or she must show that the doctor failed to perform his duties with a normal “standard of care” typical of similarly situated doctors. This means that surgeons in small towns will be judged against similar doctors in similar towns, while doctors from major research hospitals in big cities will be judged against their similarly situated peers, and of course will be held to a higher standard. The bottom line is this: medical malpractice is the failure to provide competent medical care, causing the patient unexpected injury.

Please understand that medical malpractice is not limited to surgeons: hospitals, nurses, and other medical care providers can be liable for malpractice. For example, a nursing staff may fail to do the proper count of “sharps” in a surgery and leave a surgical needle inside the patient’s body. That’s a bad thing, potentially very harmful, and certainly malpractice.

Product liability is an area of tort law where a person is injured by a defective product. Virtually any kind of product can harm us: a car, a heating pad, an artificial hip. On this site I focus on two kinds of product failures: medical devices and prescription drugs, two products which can cause serious injury when they turn out to be defective.

A defective product is one that has a substantial flaw or imperfection. The defective characteristic could be a design flaw, or a manufacturing defect, or even a missing or inadequate warning (for example, “do not take this mix this medication with alcohol”). A defective product becomes a product liability case when the defect causes injury to the consumer. To use an example from this site, when a metal-on-metal (MoM) artificial hip causes metal shavings to leach into the body, and the blood metal levels become dangerously high, the product is defective and has caused injury, and the patient should have the right to bring a lawsuit against the manufacturer.

In many cases it is not always simple to sort out whether the injury was caused by the defective product or by negligent surgical technique.

And here’s another problem: in many of these cases, when the case is grinding forward, the separate defendants will point fingers at each other. The surgeon will insist he performed the surgery correctly, but that the defective product (a defect of which he was unaware) was the cause of the injury. The product manufacturer will state that the product is fine, but the surgeon was a hack and did not understand the correct implantation technique. (In fact, Smith & Nephew may be suggesting this defense in the Birmingham Hip Resurfacing (BHR) litigation, which you can read about here and here.) Still, a good lawyer can figure it out.

Can’t It Be Both?

Yes. You can certainly be the victim of a defective product and negligent medical care. But it’s often like threading a needle. To win such a case, you will need to prove that your injuries were caused by the failure of a defective product and by negligent surgical technique. So sticking with the MoM artificial hip example, let’s say you were injured following hip replacement surgery. In the months that followed your cobalt and chromium metal levels shot up, but you also developed a painful infection near the surgical site. An investigation revealed the hospital was flagged for inadequate sterilization practices, leading to an outbreak of dangerous infection. In that case, the plaintiff-patient can rightly bring claims both for the defective product and for medical malpractice.

Unfortunately, it is rarely simple to identify two separate injuries from two separately identifiable acts of negligence in a single surgery. In most cases, it is one or the other: the surgeon implanted a faulty device, or the surgeon implanted a non-defective medical device, but put it in upside down.

Either way, you need a good lawyer to help you find the answers.

I would chalk up this court decision as a victory for any injured person dealing with the C.R. Bard IVC filter. I would also chalk up the decision as yet another example of the complexities of handling statutes of limitations in defective product cases.

As always, let’s take a step back. I have written about C.R. Bard’s potentially dangerous IVC filters, which you can read about here and here. In 2015 a multidistrict litigation (MDL) site was selected for lawsuits arising from injuries relating to Bard’s G2 Series and Recovery IVC filters. The primary complaints have been that the Bard IVC filters moved out of position and/or broke apart. Lawsuits mounted, and the MDL was formed.

Lurking in virtually every personal injury case is a statute of limitations defense. I wrote about statutes of limitations here. To recap, a statute of limitations is a law which limits the time when an injured person may bring a lawsuit for money damages. You miss the deadline, you lose your right to bring a lawsuit forever.

But as I have discussed before, determining when the clock starts running on your injury case is far from easy.

Bard Lawyers Sought Rigid Framework For Statute of Limitations Analysis

In the Bard IVC filter MDL, C.R. Bard lawyers filed a motion seeking a bright-line test to identify the running of the statutes of limitation. The defense lawyers asked Judge David Campbell to adopt a strict procedure for this analysis similar to the procedure used in the Mirena IUD MDL. (Yes, there is an MDL for women injured by Mirena IUDs made by Bayer Pharmaceuticals.) The Mirena procedure was determined in the case titled Truitt v. Bayer.

more Truitt v. Bayer

In the Truitt v. Bayer case, the judge accepted the defendants’ proposal that the statute of limitations should begin to run in Mirena IUD cases based on the date the injured woman “learned that the Mirena [IUD] had perforated her uterus.” This event, according to the judge in Truitt, gave an injured woman adequate notice that she was injured and that she should begin to figure out if she had a defective product claim against the manufacturer.

The Truitt judge then set up a procedure for figuring out which plaintiffs’ cases should be dismissed based on the passing of the statute of limitations. Both defendants and plaintiffs would submit three-page letters arguing why each case should or should not be dismissed under the Truitt framework. Utilizing this procedure, thirty-one (31) cases were dismissed in the Mirena IUD MDL.

Admittedly, the Truitt decision had the advantage of simplicity. The medical records in most cases should show the date (or close to it) when an injured woman was told by her doctor that her uterus was perforated (that is, when her IUD poked a hole in her uterus). The thinking was that a woman would be told by her doctor: “Hey look. Something bad has happened. The IUD we placed inside you just punctured the wall of your uterus and we must perform surgery to remove the device.” (Or words to that effect.) The judge then also presumed that virtually every woman at that point would be savvy enough to begin an investigation into whether this punctured uterus was the result of a defective medical product.

I have no doubt the defense lawyers in the Mirena IUD cases were pleased with the Truitt decision.

There are problems with the Truitt decision. First, it presumes that a doctor clearly communicated to the patient that her uterine wall was punctured by her IUD and that she needed surgery. Second, it presumes that all women injured through the negligence of a medical device manufacturer like Bayer would know they had a claim against Bayer the moment their doctors mentioned that the IUD had punctured their uterine wall. These are big presumptions. Doctors are not always easy to understand. And it can takes months or years to figure out that you were the victim of negligence. Some people never figure it out. In my view, Truitt allowed several valid cases against Bayer to be dismissed unfairly. Sadly, I have had many calls from injured people who waited too long to call me about their (otherwise valid) case against defective product manufacturers.

Quick Example

Let’s say the defense lawyer brought a Truitt motion in a case in a state with a statute of limitations of three years. If the defense team could show (in a three-page letter) that the injured woman was told about her injury more than three years before she filed suit, the court would dismiss her lawsuit with prejudice. Even if the underlying claim was valid, and Bayer was negligent in manufacturing and selling the Mirena IUD, the injured woman would receive no compensation for her injuries.

Now Back to the Bard IVC Filter MDL

The defense lawyers in the Bard IVC filter cases wanted a Truitt type procedure for pinpointing the running of the clock on claims against Bard. Thankfully, Judge Campbell gave many solid reasons for rejecting this procedure in the Bard IVC filter MDL. The Order was entered on April 20, 2016 and is worth reading. Essentially, Judge Campbell concluded that figuring out when the clock starts to run on a defective product claim is very complex, and should not be reduced to three-page letters to the court. He then gave many examples of how a Truitt procedure could pose all kinds of problems and could yield inconsistent and unfair results.

Ultimately, Judge Campbell denied the motion and effectively rejected a Truitt analysis for considering statute of limitations defenses. This is a good thing for people injured by the Bard IVC filters. Nevertheless, the statute of limitations in each state remains a serious threat to your product liability claim. It is crucial that you find a competent attorney the moment you suspect you may be the victim of a defective product.

My firm is currently taking IVC filter cases in all states. (919) 830-5602.

Note: If you received any type of IVC filter, you should download the free app titled “IVC Filter Compendium” (http://www.ivcfilterapp.com). In this app physicians have compiled information on the different types of IVC filters, the complications that may arise, images of the different IVC filters, recommendations for removal of the filters, and other information.