Medical device is no longer working

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Medical device is no longer working

I had the Lap Band surgery 10 years ago after my wife had the same procedure. I was doing really well I was at 335lbs and at one point dropped to 220lbs, I was doing crossfit and running and exercising. I would hit what they describe as plateaus and would notice I was not losing weight so I would schedule for an additional fill, 1/2 cc or a full cc. I did this many times because as you lose weight the band also loosens and needs adjustments. When you get an adjustment they measure what is in you and then compare it to last visit then add what we fill is needed to kick start to weight loss. This last visit I had noticed I had gained some weight and needed an adjustment about 3 month’s ago, I was shocked when they told me 6 or 7 cc’s of saline was no longer there. It had some how leaked out, I still had some and then input another cc of saline and we discussed options. It was either repair what was broken or do the sleeve. My insurance denied the sleeve one because they said I smoked, two they wanted to know where it was leaking. Now I am no brain surgeon but I think they would have to cut me open to find the answer to where the leak is. This has become very stressful and I am gaining weight again, so all those years of work are flushed away.

Asked on October 29, 2018 under Insurance Law, Alabama

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

You might have a claim for malpractice IF there is medical evidence (e.g. the professional opinion of a doctor who examined you) that the leak was due to something a medical care professional did wrong--for example that during one of the recent times when they injected or added saline, they accidentlly knicked or punctured it.
Or you might have a claim for product liability IF you can show, again with medical evidence, that the device was improperly designed or manufactured and that is why it is leaking (though given the age of the device, you might be out of time to sue--i.e. the "statute of limitations," or time period within which you must initiate a lawsuit, may have expired). 
You need evidence of one or the other: of an error by a medical professional, or faulty design or manufacture. Without that, you would have no recourse. Liabiltiy--that a person or business may be financially liable for another's costs or problems--depends on fault; no fault, no liability. If you can't show fault, then since the leak could be due to reasons having nothing to do wth the medical care providers or device manufacturer (e.g. perhaps during agressive training or exercise, you managed to tear or rupture it, which they would not be responsible for) you would not have any viable claim.


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