Medical Product Liability Versus Medical Malpractice

  • By:David Bate

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. 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.

You will have to prevail in three main areas in order to win your lawsuit:

  • You were injured by negligence of staff, device or both
  • Your medical device was defectively designed or manufactured or defectively “marketed”
  • Medical device defect or improper marketing was the cause of your injury.

In medical device cases, the outcome usually revolves around the second and third issues. Depending on how many other litigants have also filed suit for a particular medical device, and how complex the device is this aspect may be the most difficult part of your case to prove.

How Long Do I Have To File My Lawsuit?

Every state sets certain time limits, known as the “statute of limitations,” on filing product liability claims. Be sure to find out the statute of limitation in the state where you are bringing your claim.

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 entire 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, you will be paid a percentage of win if case settles or prevails in court, after legal expenses
  • You will not have to sort out confusing 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 very distinct from those of the other people in the class action, or if there are special circumstances in your case such as a pre-existing diagnosis. The downsides to joining a class action are in some cases it may take longer to collect, and in some instances you may receive little or no compensation once the legal expenses and those who joined class before you are paid.

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 so this means they aren’t easily handled without an attorney. 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, it is necessary to demonstrate you were not properly educated about the risks and benefits of the device (informed consent) or perhaps it was negligently placed. There are other factors that vary by case. Consults an skilled medical malpractice lawyer Naperville IL today. Since we are also patent lawyers we have a scientific and engineering background to understand how complex medical devices operate.


Thanks to our friends and contributors from The Law Office of Konrad Sherinian for their insight into medical malpractice practice.

Posted in: Uncategorized