Medical Malpractice/Product Liability Lawsuits
QUESTION: Hi there,
I am wondering if you can explain to me about product liability lawsuits. I read your Q&A often and I see complaints and the usual response indicates that the claim is not worth it to a lawyer, citing that med mal and product liability claims are too expensive.
So here's my question. Why is it so easy to find a lawyer for certain claims (like the Mirena IUD, or all the mesh cases), but so difficult for other things? Are certain companies just easier to sue? I had an incident with a Paragard IUD, which isn't really the point but just an example, why is no one willing to do a Paragard lawsuit but they'll take the same situation if it's the Mirena?
ANSWER: I had received dozens if not hundreds of stories from women writing to me on this site about big problems with Mirena. The IUD would embedd in the wall or actually perforate the uterus requiring surigical removal. Finally, when enough of these cases came to light.......thousands at the least.......it then became possible for brave lawfirms to spend the millions of dollars to prove that there was a defect in the device, that the manufacturer knew or should have known about it, but failed to act. To my knowledge no Mirena case has gone to trial yet so who knows if the very expensive effort will prevail. To sue (and all of this pertains to Paraguard) the lawyers need to hire top knotch scientists, doctors, researchers, and spend millions developing evidence against the company. The company will defend with their own highly paid specialists who will testify that there was no defect and that all of the complaining women simply suffered from known risks to any IUD......infection, perforation, pregnancy, infertility, etc. They assumed the risk.
So if thousands of complaints are registered about Paraguard and the damage done is from an identifiable "defect" in the device, and especially if the FDA forces removal from the market pointing to such a defect, then there would be lawsuits against Paraguard. That hasn't happened yet and may never happen. I don't know anything specific about Paraguard, the types of problems that you and thousands other may have experienced. Google PARAGUARD ATTORNEY and see what comes up. If any litigation is being contemplated, you will find it. Good luck.
---------- FOLLOW-UP ----------
QUESTION: Thank you very much for the reply, I understand the situation a lot better now.
I'm hoping I can ask you two more things. Is the company the one liable for failure to warn about the risks, or the physician?
Also, I've heard a lot about these Mirena lawsuits, are they all just being settled? I'm surprised to hear that none have gone to trial...
Julia: In regards to the "duty to warn", of course the developers and manufacturers of the drug or device are required by law to report all adverse events to the FDA. At the same time the FDA requires years of testing. All drugs and devices come with risks of complications and the FDA ultimately decides whether to approve the product. Many of the cases that turn into big class actions with thousands of victims is where the company disguised some adverse events and in effect committed fraud in order to get on the market and stay on the market. They stay there until there are thousands of victims and some lawfirms decide to invest millions to win in court against the company. After thousands of lawsuits are filed and a few trials show that the plaintiffs can make a case, there is usually a "global settlement".
In answer to your question, the company has the first duty. The doctor has a duty as well to warn what the company discloses as to risks and what the doctor may observe in his/her own practice with the drug or device. Problem is, "failure to warn" is never enough to base an expensive lawsuit upon, in most cases. With any drug or device there are obvious warnings that should be given to the patient but whatever problem you had with the Paraguard (I wish you would tell me what it is so that I could answer more clearly as to your situation) it probably occurs in maybe 1 to 3% of patients. So, the legal issue becomes this. If you did not want to take birth control pills, tubes tied, or other birth control methods and the IUD seemed to be the best choice ............ and your doctor told you that there is a very small risk (1-3%) of a complication like you have had........wouldn't you say that you probably would have said "I'll take that risk". So, whether you were told or the small risk or not, in a legal analysis, it didn't matter and you lose the case. Get it?
I have fielded probably a couple hundred questions about Mirena; typically about it having to be surgically removed. Mirene finally, after years, hit critical mass with enough such cases and lawfirms have now started to make that investment I mentioned. It will be, I predict, at least 3 years until headway is made in the litigation. It would cost the company billions and they will fight on the chance that they could win the first trials and discourage plaintiffs from going forward. Paraguard apparently is not to this point. You should google something like PARAGUARD LAWYER and see what comes up. Good luck.