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My son had an ACL reconstruction which he was not healing from. An MRI revealed what the doctor though was tissue, so he went back in to clean it up, only to find that the implant material had failed. The doctor told me this had never happened to him before. My son now has to have another surgery. I am wondering if we have a case for a lawsuit against the manufacturer and if so where do I start?
Asked on February 23, 2017 under Malpractice Law, New York
S.L,. Member, California Bar / FreeAdvice Contributing Attorney
Answered 4 years ago | Contributor
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 is exercised.
When your son completes his medical treatment and is released by the doctor or is declared by the doctor to be permanent and stationary which means having reached a point where no further improvement is anticipated, obtain his medical bills and medical reports. I assume he is a minor and that there is no wage loss claim.
Prior to filing a lawsuit, it may be possible to settle the case with the insurance carrier for the manufacturer of the implant. Your son's claim should include his medical bills and medical reports.
Compensation for the medical bills is straight reimbursement. The medical reports will document what occurred with the implant and will be used to determine compensation for pain and suffering, an amount in addition to the medical bills.
If the case is settled with the insurance carrier for the implant manufacturer, NO lawsuit is filed.
If your son is a minor and you are dissatisfied with settlement offers from the implant manufacturer's insurance carrier, reject the settlement offers and file a lawsuit for negligence and strict liability against the implant manufacturer.
If your son is a minor, you will need to be appointed guardian ad litem to file a lawsuit on his behalf.
If the case is NOT settled, the lawsuit for negligence and strict liability, which are separate claims, must be filed prior to the expiration of the applicable statute of limitations or your son will lose his rights forever in the matter.
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