Faulty PIP Breast Implants and Irish Law

Faulty PIP Breast Implants in Ireland

1,500 Irish women have been fitted with defective breast implants manufactured by a French company, Poly Implants Protheses SA. (PIP) The implants were manufactured using industrial grade silicone instead of a grade for use in medical products.

The Faulty Breast Implants Compensation Problem

The use of industrial grade silicone implies fraud by the French company; it could not happen by accident. Unfortunately for patients with these implants, PIP is defunct and there is no evidence that it was insured against claims arising from its fraudulent activities. This makes the future of Irish women’s claims aganst PIP for these implants potentially both drawn out and uncertain.

The Issue with Defective Products Liability

The reaction of the Irish regulator, the Irish Medicines Board, has often been read as legal advice and emphasises the fact that the breast implants are “defective products” within the meaning of Ireland’s Liability for Defective Products Act 1991 and Council Directive No. 85/374/EEC. Generally, this law renders a producer of goods liable for “death or personal injury… caused by the goods produced.” If a supplier of goods (a medical clinic, for instance) does not represent itself to be the producer of the goods, and identifies the producer or distributor of the goods to the injured person, the supplier is exempt from liability. This leaves the defunct and uninsured PIP as the liable producer, rather than the clinics against which claims may actually successfully be made.

Faulty Breast Implants and Irish Contract Law

The breast implants are indeed defective products, but the implants were fitted by medical practitioners in Ireland. PIP did not fit them; various doctors and medical clinics did. These implants were fitted in consideration of payment by the patient. That constitutes a contract between the clinic or doctor and the patient.

The Sale of Goods Acts 1893-1980 will apply to these contracts. Under Section 14 (2) of the Acts, goods sold must be of “merchantable quality”. This means that the goods must be fit for the purpose for which they are commonly bought. Under Section 14 (3) of the Acts the goods must also be as durable as it is reasonable to expect.

The available evidence is that the implants are not fit for the purpose for which they were bought. Industrial grade silicone implants are not, it is universally acknowledged, fit to be used as implants in human beings. It also appears that they are not as durable as it is reasonable to expect. (There are reports that their rupture rate is high). Even “doubts” about the safety of a consumer durable will be a major factor in treating a durable as un-merchantable.

Liability under the Sale of Goods Acts 1893-1980 is strict. A retailer (in this case a medical clinic) cannot successfully plead that the defect in the product was not its responsibility. It is responsible for both patent and latent defects. Even a hidden feature of the goods will render the retailer liable if the state of knowledge of the industry at the time of supply was that such a feature was injurious, if it were to be present. It was always known that industrial grade silicone was unsuitable for human implants, thus triggering the liability of the medical clinic retailers.

Irish women are free to issue proceedings directly against their Irish doctors and clinics as suppliers of the breast implants, pleading breach of contract and citing Section 14 (2) and 14 (3) of the Sale of Goods Acts 1893-1980. In addition to certain advantages of expediency, these claims will have a much higher success rate as the doctors and clinics, even if defunct, are insured.

The compensation to which women undertaking such a case may be entitled include:

• Reimbursement of the cost of the fitting;
• The removal of the implants;
• Financial damages for the pain and suffering of having them removed.

The Statute of Limitations

Of great importance to plaintiffs in all litigation is ensuring that there is no possibility of the injured person’s claim becoming Statute Barred. This is the term used to describe the legal time limits within which an injured person must start their legal case. In the case of breast implant injuries, because of the interaction between claims in arising from breach of contract (which has a statute limit of six years) and claims arising from personal injury (which has a statute limit of two years), the relevant time limits will depend on the specific facts of each case.

About McGarr Solicitors

McGarr Solicitors is a law firm specialising in Plaintiff litigation, representing injured clients in Medical Negligence cases which have settled for more than €3 million. We provide personal attention, a trusted network of medical experts, and aggressive pursuit of our clients’ rights.

Led by Edward McGarr, who has over 35 years experience representing clients in court, the firm is recognised as one of the most active litigation practices in Dublin. Our offices in the city centre- directly across the river from the Four Courts- allow us to attend to all High Court business personally. We never use law agents.

We do not charge any fees upfront and we always seek to recover the costs of your successful litigation from the other side. We aim to never take any of our clients’ compensation as fees.

Disclaimer
Please note that no solicitor/client relationship or duty of care or liability of any nature shall exist or be deemed to exist between McGarr Solicitors and you until you have received a written letter of engagement from us in which we confirm our appointment as your Solicitors. The contents of this website are not intended to constitute legal advice and should not be taken as such.