A Guide to Claiming Defective Medical Products Compensation
If your life, or the life of a loved one, has been affected by a defective medical products drugs or medicine we can help.
The purpose of this guide is to help anyone who has suffered a defective medical products drugs or medicine and is considering a legal claim for compensation. If you are looking for medical advice, please see the NHS website.
Defective medical products, drugs or medicine can significantly delay the treatment of existing medical issues and cause serious illness or injury.
Compensation claims of this nature, however, can be complex and identifying the manufacturer, supplier or medical professional responsible for your condition can be daunting without legal support.
Read this article to find out more about the main issues regarding defective medical product and medicine claims.
Do I have a defective medical products claim?
As a basic rule, you will be eligible to make a defective medical products claim if your injury happened:
- in the last three years, and;
- someone else was to blame, and;
- that person owed you a duty of care.
Find out whether you may have a claim with our Online Claim Checker:
What are the exceptions?
However, if these two points don't apply, a claim may still be possible.
To get impartial advice on whether you have a claim, you can speak to a legally trained adviser on 0800 612 7456.
A brief phone consultation will tell you exactly where you stand. There is no obligation to start a claim.
What if a child was injured?
The 3 year rule does not apply to minors.
A claim can be pursued for anyone under the age of 18 by a parent, guardian or litigation friend. The injured child has up to the age of 21 to start a defective medical products claim on their own behalf.
Can I make a defective medical products claim right up to the three-year limit?
Technically, yes. However, in practice, not always. Many solicitors will not take on a defective medical products claim that only has a few months (sometimes even a year) left before the time limit expires. The panel of solicitors will take a claim on as late as possible where it is felt that the claim could be successful.
Can I still claim if I didn't report the defective medical products?
If you did not report the accident it can make it more difficult to pursue a defective medical products claim, but a claim may still be possible. This will depend on the circumstances of your case and on the other evidence available.
The amount of money you could claim for your defective medical products will depend on:
- the extent of your injury, and
- any financial losses or costs you have incurred.
At the start of your claim, your solicitor will consider the many ways your defective medical products has affected your life. Your solicitor will take all of these effects into account to calculate the correct compensation award for you.
This calculation will factor in 'general damages' and 'special damages'.
General damages are awarded for pain, suffering and loss of amenity (PSLA).
Awards for general damages are set by the Judicial College and published in their guidelines for personal injury awards.
Special damages are for financial losses and expenses you have incurred as a result of the accident.
What can I claim for after a defective medical products? (see list)
Examples of special damages (losses you can claim for) include:
- Lost earnings (including future earnings)
- Medical treatment costs
- Travel costs
- Costs of care
- Costs of adapting your home or car
What is the average injury compensation for a defective medical products claim?
The Judicial College injury tables give a approximate idea of the ranges awarded for different injuries.
However, the money you would receive following a defective medical products will depend entirely on your specific circumstances.
Your defective medical products compensation will be calculated based on the unique impact your injuries have had on your life, your ability to work, and the actual financial losses you have incurred as a result of your injuries.
See the injury table above for some examples.
Can I claim for physiotherapy and private care costs?
Private treatment can be expensive, but funding towards the cost of this treatment frequently comprises part of a compensation award. Your solicitor may even be able to arrange access to private medical care as soon as your claim is accepted.
Can I claim for an existing defective medical products that has got worse?
Yes, it is possible to pursue a claim in the event that a pre-existing medical condition, illness or injury is made worse or aggravated by an accident or someone else's negligence.
Defective medical products compensation calculator
Calculating how much compensation you can claim for a defective medical products injury can be complicated.
Our injury compensation calculator tells you if you may have a claim, how much compensation you could claim, and what you can claim for.
Find out what your defective medical products claim could be worth now:
How long does a defective medical products claim take?
How long it can take to win compensation for a defective medical product injury can vary considerably.
A straightforward liability accepted product liability claim could be completed in a couple of months. However, if liability is denied the process might take longer. Typically, a medic al product liability claim takes between 12 and 24 months. For more information on how long your claim could take, see:How long will my claim take?
Will I still be able to claim for a defective medical products after the law changes in April 2020?
The law relating to personal injury claims is changing in April 2020.
You will no longer be able to claim no win, no fee compensation using a solicitor for lower value claims (under £5,000).
In addition, compensation for whiplash and other soft-tissue injuries will be reduced.
Caring and sensitive support
Your solicitor will handle your defective medical products claim from the initial consultation through to the financial settlement. In addition, your solicitor will work with other specialists to help you with:
- Financial support: interim payments while you are unable to work.
- Advice: on personal injury trusts, tax and welfare benefits.
- Coordination: with rehabilitation providers and therapists.
- Access: to treatment and therapies not always available on the NHS.
Defective medical product claims
The term 'medical product' is a general term for medical devices or products that are used to serve a medical or cosmetic purpose, such as a hip replacement joint or silicone breast implant.
If a medical product is found to be defective in any way, the patient is likely to be able to make a compensation claim.
The defective product will usually fall under one or more of the following categories:
These products have been manufactured incorrectly, or have been damaged at any point between the production factory and the medical centre where the fitting took place.
The claimant's solicitor must be able to prove that the product was manufactured in a defective way, or else was damaged before being fitted.
The product may have been manufactured to the correct standard, but the design or development was flawed.
The claimant's solicitor will need to prove that the manufacturer was aware of the design defect, but did not take adequate steps to ensure it was taken off the market.
Defective or misleading marketing
If a medical product has been marketed inaccurately, or 'defectively', anyone from the manufacturers to the doctor could be found responsible.
If a doctor recommends a product to a patient without offering an alternative or fully explaining the positives and negatives of the choice, the patient may have a claim.
If the product is not faulty, but has been used or applied to the patient incorrectly, a compensation claim may still be made. These claims will be made against the medical practitioner, rather than the medical product manufacturer or supplier, and are considered to be cases of medical or clinical negligence.
Compensation for defective drugs and medicine
While most drugs and medicines carry some risk of side effects, if you find that a drug or medicine you use significantly worsens an existing medical condition, you may be entitled to compensation.
Companies that produce medical products must have a very high standard of quality in their research, design and manufacturing.
Products must be rigorously tested before they can reach patients. However, injury or exacerbated illness can still occur.
Possible reasons for defective drugs and medicine:
- The drug is not checked sufficiently for allergic reactions
- The medicine interacts dangerously with other medications
- The medication stops other medications from working
- There is a flaw in the manufacturing process
- Contamination with other dangerous substances or infectious diseases has occurred during manufacture
Defective drugs and medicines pose a particularly high risk to a person's health as they are often used when the patient is already in a poor state of health, making them especially vulnerable to further illness.
The duty of care to protect users, that is imposed on parties involved in every stage of the development, manufacture, supply and administering of medication, is therefore very high.
No win, no fee, no risk
No win, no fee means that your solicitor will not charge you any legal fees if your defective medical products claim is unsuccessful. 'No win, no fee' is also called a 'Conditional Fee Agreement' or 'CFA'.
Our no win, no fee promise
Our no win, no fee guarantee means there is no financial risk in making a defective medical products claim, even if you don't win your claim.
What do I pay if I win my defective medical products claim?
Your injury solicitor will receive a success fee which is deducted from your compensation, after your claim is settled. The solicitor's success fee can be up to 25%. You and your solicitor can agree the success fee before you start your claim.
What do I pay if I do not win my defective medical products claim?
If your defective medical products claim is not successful then you will not have to pay any fees. Your solicitor may take out insurance to ensure there will be nothing to pay.
Is there a catch?
The Conditional Fee Agreement (CFA) sets out the terms between you and your solicitor., No Win No Fee is a regulated activity and as such there should be no nasty surprises in the agreement. Nevertheless, it is recommended that you read the agreement carefully and ask any questions if you are unsure.
How can Quittance help?
Your solicitor will fight for the best possible compensation settlement for you, the highly-experienced panel of solicitors have an excellent track record of winning injury claims.
If you have any questions, or would like to start a No Win No Fee claim, we are open 8am to 9pm weekdays, 9am to 6pm on Saturday, and 9.30am to 5pm on Sunday.
Call us FREE 0800 612 7456 or arrange a callback:
if you can claim
to start a claim
Defective medical products FAQ's
Can I claim for someone else?
Yes. In certain circumstances, it is possible to claim compensation on behalf of another person in the capacity of a 'litigation friend'.
If an injured person is either too young or vulnerable, too injured or otherwise unable to claim on their own behalf, their litigation friend can handle the claim process on behalf of the injured person.
The litigation friend will be responsible for communicating with the solicitors, and for making decisions in respect of the claim.
Can I claim if I was partly responsible for an accident?
You may still be able to claim compensation even if you contributed to your accident or to your injuries.
However, if you were partly to blame (known as contributory negligence), your compensation may be reduced and it may be more difficult to prove liability.
How long do I have to make a defective medical products claim?
In general, you have a time limit of up to 3 years from the date of the defective medical products to make an injury claim.
The last date you can make a claim is known as the claim limitation date - after which your defective medical products claim becomes 'statute barred'.
Can I claim for a defective medical products after 3 years?
Possibly. The general rule for adults is that a claim must be started within three years.
However, the three-year countdown starts on the day you learned of your injury or illness. This will usually be the date of the accident, but could be the date your doctor gave you a diagnosis.
If you were injured as a child, you do have up until your 21st birthday to make a claim.
There other circumstances that can also impact the limitation date. Call us now on 0800 612 7456 to find out if you are still able to claim defective medical products compensation.
In reality, there are a number of factors that can affect whether a defective medical products claim will be taken on by a solicitor.
Will I have to go to court?
Highly unlikely. The vast majority of claims that are settled by the solicitor panel are settled out of court.
Only a very small percentage (approx. 5%) of personal injury claims go to court. Generally, only very complex cases, or those where liability cannot be resolved, end up in court.
Cases that do ultimately go to court are held in front of a judge, not a jury.
Will I have to go to a solicitor's office?
No. You will not need visit a solicitor's office. As with most professional services, it is no longer necessary to meet face to face with your solicitor. Personal injury claims are dealt with via email, post and telephone.
Should you need to have a medical, this will be arranged at a medical centre near you or at your GP's surgery.
Can I get an early compensation payment?
If you suffer financial hardship as a result of an injury, you may be able to claim an interim compensation payment.
An interim payment is a partial settlement of your claim which is paid before your claim is concluded. The amount you receive in interim payments would then be deducted from your final compensation settlement or award.
About the author
Howard qualified as a solicitor in 1984 and has specialised in personal injury for over 25 years. He is a member of the Association of Personal Injury Lawyers (APIL) and is a recognised Law Society Personal Injury Panel expert.
Read more about this Quittance Legal Expert