What are my rights if I had lap band weight loss surgery but the band that was used and placed around my stomach had a defect?
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What are my rights if I had lap band weight loss surgery but the band that was used and placed around my stomach had a defect?
The doctor whom done the surgery sent the band off for further investigation and it concluded that band was defected. I was told to contact the company that makes the band to seek help with medical expenses.
Asked on March 2, 2015 under Malpractice Law, Louisiana
Answers:
S.L,. Member, California Bar / FreeAdvice Contributing Attorney
Answered 9 years ago | Contributor
Prior to filing a lawsuit against the manufacturer of the lap band, it may be possible to settle the case with the manufacturer's insurance carrier.
Your claim filed with the manufacturer's 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 will document the nature and extent of 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 manufacturer's insurance carrier, NO lawsuit is filed.
If you are dissatisfied with settlement offers from the lap band manufacturer's insurance carrier, reject the settlement offers and file a lawsuit for negligence and strict liability against the lap band manufacturer.
Negligence is the failure to exercise due care (that degree of care that a reasonable manufacturer would have exercised to produce a product that is not defective).
Strict liability is liability whether or not due care was exercised.
Negligence and strict liability are separate causes of action (claims) in your lawsuit against the lap band manufacturer.
If the case is NOT settled with the lap band manufacturer's insurance carrier, your lawsuit for negligence and strict liability against the lap band manufacturer 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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