North Carolina Product Liability Lawyer Blog
Before I get to the four things you should do if you suspect that an artificial hip or other medical device has failed you, I must start by saying that this is one of the worst outcomes a person can endure in health care. Most people approach hip replacement surgery with great caution, as surgery is a painful and difficult and traumatic experience. Further, you have arrived at the decision to undergo surgery on the basis of a challenging and serious medical issue which requires surgery to “fix” the problem. After deciding to move forward with surgery, virtually no one expects that a medical device such as an artificial hip or knee will somehow “fail” inside your body. This result is often worse than the suffering which occurred through the underlying medical condition prompting the original implant surgery. So, at the outset, let me say that I am sorry you find yourself in this very unfortunate position. That said, you need to take action when it becomes apparent that a medical device like an artificial hip has failed:
1. Start a symptoms/pain journal.
This is an important step you can take in protecting your rights in the face of a medical product failure. It is simple enough: when you first begin to notice sensations or pains which seem abnormal or unexpected, jot down the physical symptoms on a piece of paper or a notes app on your smart phone. The more detail the better—if the pain occurs when you sleep, note the time when the pain arrives, whether it woke you from sleep, and any other details. If you feel pain during certain activities, such as lowering yourself into your car or walking on hard surfaces, note those conditions as well. This journal may well provide critically important information for your doctors but also for your attorney as he or she prepares a settlement package or a lawsuit (or both). A person who has been injured by a medical device product failure can recover money “damages” in a category known as pain and suffering. A pain/symptoms/well-being journal can provide extremely valuable information to an attorney putting together the best case for you in the event you have a solid claim against a manufacturer for a failed medical device.
2. Gather evidence.
Related to Item No. 1, this Item is very important in starting the process of building your legal case. Although the attorney you choose should seek out your complete medical records related to your medical device surgery and rehabilitation, it is important in the early stages to keep a file with any documentation you receive from your surgeons, your primary care doctor, your physical therapist, your pharmacist, and any other professionals who are related to your surgery or follow-up care. In addition, if appropriate, shoot video of any situations which may shed light on your physical problems. If you have trouble getting out of bed, have your spouse or a friend take video of you attempting to get out of bed. If your hip is making a popping sound, shoot video or record audio of the pop. When gathering this evidence, try to establish the date of the video or audio, even if you have to state, “today is July 30, 2015, and I am now going to lower myself into this chair.”
3. Keep a record of all bills, out-of-pocket expenses, and time missed from work.
Keep complete records of all bills incurred and any out-of-pocket expenses you are paying for your surgery, recovery, rehabilitation, medications, etc. In some cases, manufacturers of defective medical devices have set up a procedure by which the manufacturer will pay the out-of-pocket expenses of a victim of a failed medical device (but be cautious when accepting payments from these “third-party administrators” and read all documents you sign carefully). Finally, keep detailed records of all time missed from your employment, including sick days which you were forced to spend, and days out of work for which you lost compensation.
4. Make an appointment with your physician.
First and foremost, if you have a failed medical device implanted in your body, you have to get yourself back to good health. As I tell all my clients, your health decisions always come first, and those are between you, your family, and your doctors, and do not involve any attorney. So set an appointment with your treating physician, and let her know about the pains or discomforts or sensations you are experiencing. If the failed medical device is causing underlying problems like elevated metal levels or other bad results, you will want to have that information as soon as possible and you may need to schedule a revision surgery. But again, you need a good doctor to help you analyze your medical condition as soon as you become aware of something being “not quite right.”