What is my legal recourse regarding a defective knee replacement?

Had a knee replaced about 15 months ago ago and it never was right. I followed up with the doctor who blew it off. A couple of months later, it was so painful that I could not walk. The knee joint had failed and on researching I found out it’s on recall. The doctor did a revision and told me that he screwed up and should have done it right the first time. When I asked about the recall, he got strange and did not want to talk about it. Do I talk to a personal injury, malpractice or defective product case?

Asked on June 6, 2017 under Personal Injury, California

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You have potential claims for medical malpractice and product liability.
Medical malpractice is negligence.  Negligence is the failure to exercise due care (that degree of care that a reasonable medical practitioner in the community would have exercised under the same or similar circumstances to prevent foreseeable harm).
Prior to filing a lawsuit for negligence against the doctor, it may be possible to settle the case with the malpractice insurance carrier.  Your claim filed with the doctor's malpractice insurance carrier should include your medical bills, medical reports, and documentation of wage loss.  Compensation for the medical bills is straight reimbursement.  The medical reports document your injury and will be used to determine compensation for pain and suffering which is an amount in addition to the medical bills.  Compensation for wage loss is straight reimbursement.
If the case is settled with the malpractice insurance carrier, NO lawsuit against the doctor is filed.  If you are dissatisfied with settlement offers from the malpractice insurance carrier, reject the settlement offers and file a lawsuit for negligence against the doctor. 
If the case is NOT settled, your lawsuit for negligence against the doctor must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.
The product liability case against the manufacturer of the knee joint is based on negligence and strict liability.
Negligence is the failure to exercise due care to produce a product that is not defective.
Strict liability is liability whether or not due care was exercised.
Prior to filing a lawsuit against the manufacturer for negligence and strict liability, it may be possible to settle the case with the manufacturer's insurance carrier.  Your claim filed with that insurance carrier should include your medical bills, medical reports, and documentation of wage loss.
The previous discussion about compensation is applicable here along with the discussion of settlement offers and filing a lawsuit prior to the expiration of the statute of limitations if settlement offers are unacceptable.
You would file one lawsuit naming the doctor and knee joint manufacturer as defendants.
It would be advisable to speak with a medical malpractice attorney and a product liability attorney.


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