Product liability and MPS
Issues with product liability have made the headlines in a number of countries around the world recently – notably the DePuy metal on metal hips in South Africa and Ireland, and the PiP breast implants in the UK. These issues arose from faulty products, where normally responsibility lies with the manufacturer or supplier of the product.
However, in both cases, attempts were made by claimants to include surgeons in the claims – in the DePuy hips case, the justification given was that the surgeons had failed to properly fit the prostheses; with the PiP implants, the insolvency of the manufacturer was the motivation for involving the surgeons in the claims.
In both situations, whilst MPS is not providing an indemnity for product liability, MPS is supporting members with these cases by doing whatever is possible to prevent the development of litigation targeting clinicians, when other more appropriate sources of compensation (the manufacturer or supplier) are no longer available.
In the meantime, members can take steps to protect themselves in the event of a claim for product liability, by retaining documentation relating to:
- Evidence of purchase.
- Where possible, the serial number of the item in question – it can be used as evidence of the batch of goods obtained.
- Terms and conditions.
- Express warranties and guarantees.
- Instructions and packaging.
- Correspondence regarding product specification and any alteration.
- Where whole goods are transported by an external logistics company, relevant contracts/terms/correspondence.
- Complaints history relating to product and similar products (if relevant).
- Order forms, emails, faxes.
Clinicians should also take care regarding any verbal statements made to patients regarding a product. Statements that erroneously imply a lifetime guarantee, for example, can make a clinician liable in the event of a related allegation or claim.