I have PIP Breast Implants, what is my problem?
You have a medical problem and, consequently, a legal problem. The medical problem exists because the breast implants are almost certainly defective.
Why do you say the PIP Breast Implants are “almost certainly” defective?
Poly Implants Prothese SA. (“PIP”), a French company, bought the silicone and, since 2001, used it, fraudulently, to manufacture most, if not all, of its human breast implants. These implants were, in turn bought by various clinics and doctors and offered for use to Irish women.
In what way are the PIP Breast Implants defective?
The defect lies in the fact that the silicone of which they were made was intended by the silicone manufacturer for use in mattresses, not in human breast implants. It is believed that the PIP breast implants have a higher than average rate of rupture than rival, safe, products.
Is this a serious defect in the PIP Breast Implants?
If the breast implants do not rupture, it is probably not a problem. However, in all cases of fraud, as this one is, it is not possible to exclude the possible presence of toxic substances in the breast implants. If that is the case the problem is not just serious, it is serious and acute.
What is the advice of the medical profession?
“The medical profession” does not have anything to say about PIP breast implants. Sources of opinion with medical qualifications on the issue range from the French, UK and Irish regulators to the doctors or clinics that fitted the breast implants. Each of these sources is, to a greater or lesser degree, conflicted.
What do you mean by “conflicted?
This is where your medical problem becomes, in part, your legal problem. There are reasons to think that the regulators, in their respective ways, were not up to the mark in addressing the problem, either in anticipating it, or in responding to it. More importantly, the doctors or clinics that fitted the breast implants should not be consulted on the correct medical or legal response for you to take now.
Whom should I consult?
You should consult a cosmetic or plastic surgeon who has never fitted a PIP breast implant in a patient. You should bear in mind that he or she will be awaiting, like you, the outcome of various investigations into the health implications of the fraudulent use of non-medical grade silicone in human implants.
Should I consult anybody else?
You should consult a solicitor. Don’t forget, you have a legal problem.
What is my legal problem?
Put bluntly, you are going to, sooner or later, suffer loss arising from this problem. The first loss is the cost of getting medical advice now. When a decision is made by you to have the PIP breast implants removed, there will be a cost to that. Then you will probably require replacement breast implants fitted (in the same operation, presumably). That is another element of the medical costs that cannot be avoided. These medical operations, although elective, are imposed on you by the crisis and will entail pain, suffering and inconvenience as well as direct costs. You are entitled to compensation for that pain and suffering.
Who is going to pay me my compensation?
The person or persons that you successfully sue will, if they are solvent, pay you your damages.
Whom should I sue?
Well, you do have a cause of action, or legal basis of claim, against PIP, but it is defunct and under criminal investigation in France. There is no point in suing PIP unless you are certain to receive compensation at the end of your litigation. Instead, you should examine your legal relationship with the clinic or doctor that fitted the PIP breast implants.
Why? Surely they knew nothing of the PIP fraud?
That is irrelevant to any liability they may have. Their liability arises in the law of contract. The PIP breast implants were fitted in consideration of payment by you. That constitutes a contract between the clinic/doctor and you. The Sale of Goods Acts 1893-1980 will apply to this contract. Under Section 14 (2) of the Acts, a condition is imported into such contracts, that the goods are 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 be as durable as it is reasonable to expect. Your burden of proof is to establish that, on a balance of probability, the breast implants were and are unmerchantable. You would do this, if the defendant denies it, by evidence from an expert. 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.
Will I have to go to court?
Yes, in principle. The Injuries Board has no role in such disputes. You will have to give evidence of the contract you made with the defendant/s and the additional costs they have imposed on you, but the significant evidence, if the defendants refuse to settle the claim, will come from your expert.
How long will it take?
That depends on the response from the defendant/s. If you go all the way to the door of the court, it might take twelve months.