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Who is liable for dangerous and toxic breast implants?

If you receive breast implants that turn out to be defective -- even outright dangerously toxic -- who is liable for your damages?

Are you simply out of luck? Absolutely not. You have the right to expect that any medical device, including a breast implant, is safe to use. If it isn't, the specific dangers you're facing may help identify who should be held responsible.

Breast implants have been the subject of both individual and class action lawsuits. Class action lawsuits are similar to individual lawsuits except that they consolidate a large number of similar cases together with only a few litigants representing everyone in the court.

While there were several lawsuits in the past about breast implant dangers, particularly those made from silicon, redesigns in the way that the implants are made have cut down on litigation. Newer implants don't often rupture and are designed to prevent their composite materials from leaking into the body.

However, a recent report from the Food and Drug Administration (FDA) has indicated that a certain type of breast implant is associated with anaplastic large cell lymphoma (ALCL). To date, 359 cases have been reported to the FDA, nine of which resulted in the death of the patient.

Apparently textured implants are more likely to cause the rare cancer to develop than the smooth implants, although experts aren't sure why. All they know is that body tissues tend to grow into the grooves of the textured implants to keep them in place. Smooth implants aren't quite as fixed in position.

Right now, the FDA is recommending that doctors educate patients about the risks and counseling them ahead of time as they make their choice of implants.

It may be too early to determine whether this problem, which seems to be product defect, is a defect of design or manufacturing. Design defects make a product inherently unsafe, even if used correctly. Manufacturing defects are those that take a safe product and make it unsafe through a manufacturing error. Since the problem was just now identified, it's unlikely that it's a marketing defect, which occurs when consumers aren't given enough information or inadequate safety warnings about a product to make a measured choice on whether or not to use it.

Anyone with breast implants who develops ALCL should contact an attorney for advice.

Source: ABC News Radio, "What to know about FDA's warning on breast implant risks, rare cancer," March 29, 2017

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