Is a manufacturer of artificial joints liable for medical costs of having defective joints replaced?

I had MCP joints replaced. Within a couple months, I had pain that continued for several months. Dr. suggested surgery again to investigate and fix the problem. Discovered through surgery that the joints were broken. It had been less than 1 year since previous surgery. Company representative was shown broken joints during the surgery. The joints were taken back to the company to research why they had failed. Can I have the liable company pay for my medical costs of the second surgery to replace the defective joints and the additional medical costs involved. Also, can I have remediation for the physical pain and suffering involved through enduring pain of defective joints and recovery from additional surgery.

Asked on September 18, 2017 under Malpractice Law, South Carolina

Answers:

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

Answered 3 years ago | Contributor

Prior to filing a lawsuit against the manufacturer of the joints, it may be possible to settle the case with the manufacturer's insurance carrier.
When you complete your medical treatment and are released by the doctor or are declared to be permanent and stationary by the doctor which means having reached a point in your medical treatment where no further improvement is anticipated, obtain your medical bills, medical reports and documentation of wage loss.  Your claim filed with the insurance carrier for the manufacturer of the joints should include those items.
 With regard to the second surgery, compensation for the medical bills is straight reimbursement.  The medical reports will document the defective joints 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 manufacturer's insurance carrier, NO lawsuit is filed.
If you are dissatisfied with settlement offers from the manufacturer's insurance carrier, reject the settlement offers and file a lawsuit for negligence and strict liability against the manufacturer of the joints.
Negligence and strict liability are separate causes of action (claims) in the lawsuit.
Negligence is the failure to exercise due care to produce a product that is not defective.
Strict liability imposes liability whether or not due care was exercised.
If the case is NOT settled, your lawsuit against the manufacturer for negligence and strict liability must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.


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