Diagnosis and Your IVC Filter Case

Getting a clear diagnosis of your health problems is a crucial step in determining your "damages" and resolving your IVC filter lawsuit.

A lawsuit over a surgically implanted "inferior vena cava" (IVC) filter usually starts after a patient learns that the device has failed in some way, causing a specific health problem and/or exposing the patient to certain health risks. A medical diagnosis is typically crucial to these kinds of cases, helping show that the plaintiff (the person who is suing) is entitled to financial compensation from the device manufacturer.

Overview of IVC Filter Lawsuits

An IVC filter is a medical device that is surgically implanted in the IVC (a large vein in the middle of the body) to catch a dangerous type of blood clot known as a deep vein thrombosis (DVT) and prevent it from traveling to a patient's lungs, where a potentially fatal blockage known as a "pulmonary embolism" could form.

The surgical implant of any medical device comes with known risks, and IVC filters are no exception. But in the last few years, thousands of patients have alleged that certain IVC filters have failed in unancticipated (and unreasonably dangerous) ways. In some cases, the filter disintegrates so that pieces migrate away from the implant site, requiring additional surgical intervention. In other cases, failure of the device punctures arterial walls, causing serious complications like organ damage.

Two of the biggest manufacturers of IVC filters, Cook Medical Inc. and C.R. Bard Inc., are now facing thousands of lawsuits each over the safety of these products. In early 2019, a federal jury ordered Cook Medical to pay over $3 million to a Georgia woman whose disintegrating IVC filter caused multiple health problems.

Lawsuits like these rely on a legal concept called "product liability," in which the plaintiff tries to show that a product is unreasonably dangerous or that the manufacturer failed to properly warn patients of health risks associated with the product.

The Importance of Diagnosis in an IVC Filter Case

In any personal injury or product liability case, including lawsuits over the safety of IVC filters, the specifics of the plaintiff’s health problems are critical. They shape the value of the case, making an accurate diagnosis essential.

Diagnosis goes straight to the nature and extent of the plaintiff’s losses ("damages" in legalese). An IVC filter case almost always includes both “economic” damages (covering the cost of additional medical treatment, lost income, and other quantifiable losses) and “non-economic” damages (applying to pain and suffering, loss of enjoyment of life, and similar, more subjective consequences of the plaintiff's health problems). Learn more about damages in an injury case.

When faced with a lawsuit over the safety of a medical device like an IVC filter, manufacturers like Cook Medical and C.R. Bard may well argue that the plaintiff hasn't actually experienced any complications attributable to the device, or that the plaintiff’s health problems can be explained by some other cause.

That’s part of why diagnosis is so important to any case—an incomplete or inaccurate diagnosis makes it much easier for the defense to argue that the plaintiff hasn’t proven that the health problems came from use of the product. Indeed, it's a good idea to see a doctor at the first sign of any complications associated with an IVC filter—to protect not only any lawsuit you decide to file, but also your health.

Diagnosis and the Statute of Limitations

Laws called "statutes of limitations" set time limits on the right to file a lawsuit.

Since health problems linked to IVC filters can progress gradually, it's not always clear when the plaintiff's "injury" actually occurred for purposes of the filing deadline. In some states (like California), the date the person knew (or should have known in the eyes of the law) that their health problems were linked to an implanted IVC filter is typically the start of the statutory time period. But other factors can influence when the statute of limitations "clock" is said to start. In some jurisdictions, that the plaintiff became or should have become aware of their health problems is what matters, not their potential or actual knowledge of the cause of that harm. Product manufacturers have also been known to argue that the onset of symptoms (not necessarily a clear diagnosis of a health problem) is enough to start the statute of limitations "clock" in certain cases, and some courts have agreed.

Bottom line: If you wait too long to file your lawsuit, you might be barred from pursuing an IVC filter case. An extension of the deadline might be possible, but you should consult a lawyer as soon as you begin to think about whether you have a viable case.

Many states have a specific statute of limitations for product liability lawsuits, while in other jurisdictions the limitations period for general personal injury lawsuits will apply. Either way, the filing deadline in most states ranges from one to six years for a lawsuit over complications from an implanted IVC filter. For wrongful death lawsuits, a different statute of limitations applies (usually setting a deadline of one to two years from the decedent's death). For details on how the statute of limitations affects your situation, talk to a lawyer.

Diagnosis and the Lawyer’s Role

Most lawyers will not start an IVC filter lawsuit until they have confirmed that a possible client has a specific health problem that could be linked to the implanted device.

Some attorneys will arrange for a health assessment (a physical examination and imaging tests) for potential clients. Other times attorneys will order medical records from the potential client’s doctor or hospital and send the material to medical experts for evaluation.

If your doctor does not think you have a diagnosable complication associated with your implanted IVC filter, but a lawyer's medical expert thinks you do, you can take the expert’s report to your own doctor for a follow-up exam, or seek a second opinion from a different doctor.

I Have a Lawyer. What Happens Next?

A lawyer who has decided to take your IVC filter case will determine which defendant(s) to sue and then file a "complaint" in court. The complaint is the legal document that starts the lawsuit and asks for damages from the defendant. (Note that a lawsuit doesn't always need to be filed; any product liability lawsuit can settle out of court, at any time. See the timeline of a typical personal injury claim.)

Next, the case moves into the "discovery" phase, when both sides gather evidence. Your lawyer might need to order additional medical documentation for retained experts to review. Your lawyer's medical experts might also examine you.

Medical Information and Discovery

Defendants are usually entitled to see whatever medical information the plaintiff’s lawyer has that’s relevant to the case. If you have a case, your lawyer will probably need to provide the defense with a list of facilities where you've been examined or treated. The plaintiff’s lawyer usually hands over this kind of information as "answers to interrogatories," part of the discovery phase.

When the defense attorneys decide they want to look at specific medical records the plaintiff’s lawyer hasn’t already provided, the plaintiff often has to give authorization allowing the release of further medical information. Because of privacy regulations, each authorization must be specific to the facility, so the plaintiff might have to sign a lot of forms.

Sometimes the defense asks for medical information by issuing a subpoena to a facility. If they take this route, they have to notify the plaintiff’s attorney. If the request is for something inappropriate or irrelevant, the attorney can try to block the subpoena or review records first to protect the plaintiff’s privacy.

Normally, the defense can also have its own medical expert examine the plaintiff (this step is called an "independent medical examination"). The plaintiff’s attorney helps arrange such an exam and should protect the client from any improprieties, such as medical tests that aren’t related to the plaintiff’s claims.

Medical Information and Your Sworn Testimony

If you have a case and it gets to the point of a deposition (or even trial), the defense will ask you about your health generally, your IVC filter-related health problems, your diagnosis, and your treatment. Sometimes plaintiffs’ deposition (and trial) answers differ from their written answers to interrogatories because of a mistake in memory. These small discrepancies are normal and extremely unlikely to affect the plaintiff’s case. If you have a case, you don't need to prove that your diagnosis is correct or even understand the medical details; expert witnesses will weigh in on those subjects.

If you’re considering filing an IVC lawsuit, you should consult an attorney as soon as reasonably possible. An experienced lawyer will be able to explain the law as it applies to your situation.

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