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Faulty PIP breast implants: The Time Problem

What is the “time problem”?

Every claim lodged in a court, to be successful, must be lodged within a “window” of time. That window is defined by the Statute of Limitations, or some other statute of similar effect. Missing the window will result in a bar on successfully bringing a claim.

Depending on the basis of the claim, or the kind of claim, the window may be long or short; it may be rigid or flexible in its point of commencement.

If it is inflexible, the knowledge of the woman is irrelevant. Time just starts to run. If it is flexible, time does not start to run in the absence of knowledge by the woman that she has been injured or could reasonably have found out that she was injured.

Irish women with PIP breast implants normally learned that they had been fitted with them when they received a letter from a clinic or a doctor confirming that that was the case. This happened belatedly because PIP implants were not marketed to the women, the ultimate consumers, by brand name; the implants were “brandless” when they were fitted. Of course the clinic or doctor that fitted them was aware of the brand, even to the extent of keeping records (in most cases) about the individual implants.

This fact of belated learning by the women means that, in relation to any proceedings based on allegations of negligence, the limitation period of two (2) years for such actions (under the Statute of Limitations) will not begin to run before they are so informed. The two-year period will, generally, begin to run from the day they receive the letter.

The clinics may argue that time began to run before that date. They may point to the so-called “controversy” arising from the “recall” of the PIP breast implants and try to suggest that the controversy put, or ought to have put, the women on notice to actively make inquiries from a date early in 2010. Such arguments are without merit, particularly in circumstances where the clinics, or one or more of them, were not promptly forthcoming with the written alert to the individual patients.

Is “negligence” the only basis to make a claim?

No. Each Irish PIP victim entered into a contract with the clinic fitting the implants. A claim based on breach of contract must be lodged before the expiry of six (6) years from the date of the breach. “Breach” here must mean the fitting of the implants and time runs from that date.

Is there any other basis for PIP victim claims?

Yes. The breast implants are “defective products” within the meaning of Ireland’s Liability for Defective Products Act 1991 and Council Directive No. 85/374/EEC. Claims under the 1991 Act must be lodged within three (3) years of the occasion on which time starts to run, and never later than ten (10) years after the product was put into circulation. In the case of Irish PIP victims, that is the date they received the letter from the clinic informing them that they had PIP breast implants.

What is the interaction between the two-year (or three-year) period and the six-year period?

There is none. The two-year (three-year) period begins to run from the knowledge or imputed knowledge of PIP implants having been fitted. The six-year period begins to run on the date of the operation to fit the PIP implants. For the six-year period, knowledge or ignorance is irrelevant; time just starts running. After six years the action, for breach of contract, is barred.

So, one right of action might become barred and the other survive?

Yes. The individual facts of each woman’s circumstances will show what her rights are.

What are the actual relevant dates from which time is running?

For negligence claims the date is the date the woman received a letter from the clinic informing her she had PIP breast implants.

For breach of contract claims the date is the day of the operation fitting the implants.

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