Defective Medical Product Claims

Medical negligence and product liability claims here at McCarthy + Co Solicitors LLP are overseen by our head litigation lawyer, John McCarthy. John has acted in a wide variety of personal injury, medical negligence, and defective medical product cases at Circuit Court, High Court, and Supreme Court level.

John has acted for many patients affected by defective implants and devices. He was closely involved in the litigation that followed the worldwide recall of the DePuy ASR hip replacement system, and more recently has acted for patients fitted with the DePuy Attune knee system.

Expertise in product liability claims

Although this area sits within our medical negligence practice, a defective device claim is legally different from a medical negligence claim. A negligence claim is about whether a doctor, surgeon, or hospital fell below the standard of care expected of them. A defective product claim, by contrast, is about the product itself, and is brought against those responsible for placing it on the market. It is governed by the Liability for Defective Products Act 1991, which implements European product liability law in Ireland.

The great advantage of this route is that it operates on a strict liability basis. This means that, if you can show the product was defective and that it caused your injury, you do not have to prove that anyone was negligent, or even identify exactly how the defect arose. A claim can be brought against the producer, which includes the manufacturer, a business that put its own brand on the device, and the importer who brought it into the European Union. In some cases, a defective device claim and a medical negligence claim can run alongside each other, for example where a device was both faulty and negligently fitted, and we will advise on every route open to you.

Time limits for defective product claims

The time limits for a defective product claim differ from those in a negligence claim. Instead of the usual two years, a claim under the 1991 Act must generally be brought within three years, running from the date you became aware of the injury, the defect, and the identity of the producer. There is also a ten-year ‘long-stop’, after which a strict product liability claim generally cannot be brought, running from when the product was first put into circulation.

What ‘in circulation’ means can be significant. A device design might be twenty years old, but the better view is that the ten years runs from when the particular product you received was actually supplied, that is, sold or put into use in your procedure, rather than from when the design first appeared. This can make the difference between a claim being available or not, so it is worth taking advice rather than assuming you are out of time.

How the law is changing

Product liability law is being significantly reformed. A revised European Product Liability Directive, Directive (EU) 2024/2853, must be brought into Irish law by 9 December 2026, and will apply to products placed on the market after that date, while devices supplied before then remain under the Liability for Defective Products Act 1991. One change is especially relevant to medical devices: because some injuries from implants take many years to emerge, the new rules extend the long-stop from ten years to twenty-five years in cases of latent personal injury, where symptoms are, on the medical evidence, slow to appear. The new regime also widens the range of businesses that can be held liable and eases the burden of proof in technically complex cases. We can advise on which regime applies to your situation.