Medical Device Safety Act of 2009 and Doctors

New England Journal of Medicine has an editorial from doctors who support federal legislation that would give injured patients the right to sue medical device manufacturers in state courts.

Sometimes I have a case against multiple defendants where each defendant would be better served by making a stronger case against the other defendant. But, as if by Pavlovian reflex, the defense lawyers will look to find common ground and bend over backward to avoid pointing to each other to the detriment of their clients.

I think the same Pavlovian reflex causes doctors to oppose the Medical Device Safety Act of 2009 that overrules Medtronic v. Riegel. This is rooted in doctors’ disdain for medical malpractice lawsuits, which leads to the reflex that anything that helps injury victims bring lawsuits is a bad thing. Because barring lawsuits against medical device manufacturers will lead many injured plaintiffs to blame their doctor, the result will be more medical malpractice lawsuits. Preemption will also undermine, as doctors writing in the New England Journal of Medicine have previously opined, the confidence that doctors and patients have in the safety of drugs and devices. If doctors cannot trust that the device manufacturers have to make products for which they will be held accountable, doctors are going to resist using medical devices that are efficacious. If Medtronic v. Riegel remains the law, it hurts patients and, ironically, medical device manufacturers.

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