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Jaw-implant class action given the go-ahead

Sometimes links stop working so here's the GOOD NEWS!!!


Jaw-implant class action given the go-ahead

KIRK MAKIN
>From Tuesday's Globe and Mail

September 11, 2007 at 5:05 AM EDT

An Ontario Superior Court judge has given an unprecedented green light
to a class-action lawsuit against the federal government over jaw
implants that disintegrated, leaving an estimated 2,600 people
suffering a lifetime of intense, chronic pain.

The case, which could result in settlements worth hundreds of millions
of dollars, is the first in which a court has penetrated a seemingly
impregnable immunity enjoyed by Health Canada regulators when it comes
to faulty medical devices.

Yesterday's ruling granted legal "certification" to the plaintiffs, a
major hurdle in a class action that usually results in the defendant
offering a settlement.

In his decision, Mr. Justice Maurice Cullity was quick to dismiss as
"fanciful" federal arguments that he has left government regulators
vulnerable to a flood of future litigation.

A lawyer for the plaintiffs, John Legge, said in an interview that
Parliament has a moral obligation to move quickly to settle the case
and compensate the victims.

The conduct of senior Health Canada officials in the case was
unconscionable, Mr. Legge said. Despite being told the implants could
break down and "cannibalize" bone and soft tissue at the base of each
victim's skull, Health Canada failed to issue warnings or take action
to get the devices off the market, he said.

It took a half-dozen junior "whistle-blowers" to leak the fact that
their department was ignoring their warnings before the faulty
implants were withdrawn, Mr. Legge said. "Most of the doctors and
hospitals involved are effectively supporting this action, because
they didn't know about the risk either," he added.

In his ruling, Judge Cullity noted that, should the case go to trial,
it could be possible for the plaintiffs to argue that Health Canada's
inaction "could only have encouraged the importer/distributor to
believe that it could ignore its statutory obligations. ..."

The vast majority of the plaintiffs in the class action are women.
They chose to have the implants inserted because they had been
clenching their jaws in a way that caused them muscle pain.

"The implants sent their autoimmune system into chaos," Mr. Legge
said. "The body started to destroy itself. Their best day is like
undergoing a dental drill without an anesthetic."

The lawsuit specifically alleges that the Health Canada employees
negligently approved the Vitek TMJ implants under the Food and Drugs
Act, and that they failed to warn doctors and patients of potential
risks.

The lead plaintiff in the case, Kathryn Taylor, received her implant
in 1988. The lawsuit was launched 11 years later. "She claims to have
suffered catastrophic and irreversible adverse biomedical consequences
that resulted in permanent total disability and loss of enjoyment of
life," Judge Cullity said.

The implants were manufactured in the U.S. and marketed under the
trademark Proplast.

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