Hodge Jones & Allen

Silicone Breast Implant Compensation

 

Peter Todd, Solicitor, Hodge Jones & Allen LLP

Tuesday 3rd January 2012

 

We have been contacted by a number of women seeking legal advice regarding the possibility of recovering compensation in relation to their silicone breast implants.

 

Thousands of British women have received silicone breast implants manufactured by French manufacturer Poly Implant Prosthese (“PIP”).

 

PIP has gone into liquidation following the recall of their implants products by the French medical regulatory authority (“AFSSAPS”). This raises serious questions as to whether Claimants will be able to successfully recover compensation.

 

Investigations and tests by regulatory authorities in the USA, France and UK have established a higher than normal rupture rate of PIP prostheses, that some silicone used was not of the approved standard, and a report in France of the death of a woman implanted with PIP breast implants from Anaplastic Large Cell Lymphoma (“ALCL”). ALCL is a rare form of cancer which affects cells from the immune system.

 

The UK Regulator of medical devices is the Medicines and Healthcare Products Regulatory Agency. The MHRA website contains updates from the Agency on this problem.

 

The MHRA is advising patients to seek medical advice from their implanting surgeon. The MHRA currently does not advise routine revision surgery, although the French regulatory agency has advised routine revision surgery.

 

Due to the liquidation of PIP, it is unlikely it will be cost effective for proceedings to be taken against the manufacturer. There does not presently seem to be a product liability insurer willing to accept a liability to settle claims against PIP.

 

There is a possibility Claimants may have claims against their treating doctor if there was medical negligence in the treatment. However this is likely to require a special circumstance in an individual case, and is unlikely to apply to many people. The clinical negligence team at HJA will however assist any client who wants that issue fully investigated although it is likely the costs of the investigation will have to be paid privately as legal aid is not likely to be available.

 

Some household insurance policies contain “reverse indemnity” cover. This is insurance against the risk that you may not be able to recover compensation from someone because (for example) they are uninsured or insolvent. However the exclusions to most standard policies exclude cover where the claim arose from a business activity – such as product liability. It is worth checking the detail of your insurance cover to see whether your policy might cover you. Strict time limits may apply.

 

We are investigating in some cases the possibility of a claim against the clinic which contracted with the patient for the supply of the implant. The contract is subject to the Sale of Goods & Services Act 1982 which provides that there is an implied term that the implants will be of “satisfactory quality”. This means “if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.” A court will award compensation for breach of this implied term which will put the patient back into the position they would have been in had the contract been properly performed; in most cases this will cover pain and suffering of a revision operation and the treatment and consultation involved and consequential loss.

 

Given the current situation it is likely that pressure will mount on the UK government to establish a compensation scheme to cover medical expenses and other losses. We suggest you lobby your MP on the issue.