If a breast implant ends up being defective, you most likely have grounds for a lawsuit or are entitled to recover from a class action settlement. This article discusses the variety of lawsuits that can result from defective breast implants.
The majority of lawsuits based on defective breast implants involve the injured person (the “plaintiff”) suing the manufacturer of the breast implants. Typically, a case against the manufacturer will be a product liability case and will include claims of strict liability, a failure to warn, breach of express and implied warranties, negligence and even fraud.
In a strict liability claim, you only need to prove that
In a failure to warn claim, as the name implies, you must prove the manufacturer knew or should have known about a particular risk inherent in the breast implant, but failed to provide you with an adequate warning. If you can prove the manufacturer definitely knew about the defect, you might also win a fraud case against it and be able to collect punitive damages.
A warranty (which can be either express or implied), is a guarantee that the product will perform in a certain way or will conform to certain standards. If the breast implant unexpectedly ruptures, leaks or becomes deformed, you can claim that it did not meet the purposes for which it was purchased and that there was a breach of warranty.
A case against a breast implant manufacturer may also involve a negligence claim, although strict products liability is generally intended to replace negligence claims when the case involves a consumer good like breast implants. If your state allows negligence claims and strict products liability claims in the same lawsuit, to win your negligence claim you will need to prove:
Learn more about how negligence works in personal injury cases.
Typically, a lawsuit against the plastic surgeon would be for some kind of negligence in implanting the breast implant. That kind of lawsuit would fall under special medical malpractice rules and procedures.
For someone other than the manufacture to be held liable for a defective consumer product like a breast implant, that other person needs to qualify as a distributor or a seller of the product. Courts typically do not find that surgeons and other health care providers or hospitals qualify as distributors or sellers of breast implants.
There are several class action settlements in place that provide compensation to consumers who have been injured by a defective breast implant. If you think you’ve been injured by a defective breast implant, you may not need to sue to get a recovery. But if your breast implant injury is the result of a negligent surgery, the class action settlement will not apply to you.
It may be quite difficult at the outset to figure out if medical malpractice or product liability is the cause of your injuries, or if there is an existing settlement out there that may apply to your case. The best course of action is to consult with a product liability attorney who is experienced with breast implant cases and/or an experienced medical malpractice attorney. Either one of these kind of experienced professionals should be able to tell you what your next steps should be.