A doctor who blames a botched hip implantation on Smith & Nephew (FTSE:SN, NYSE:SNN) won a partial victory after the judge in the case denied most of the British medical device company’s bid to have the case dismissed.
Dr. David Chao, the team physician for the NFL’s San Diego Chargers franchise, sued Smith & Nephew in the U.S. District Court for Southern California, alleging that inadequate training and faulty surgical scissors for SNN’s Birmingham Hip Resurfacing implant led to the botched surgery on Kathleen Adams in 2007.
Adams sued Chao for negligence, winning a $2.2 million settlement in 2008. Chao wants Smith & Nephew to cover the tab, accusing the company of training him and other doctors "to push the tips of the scissors into tissue in a manner such that the surgeon did not have a view of the tips of the scissor tines (i.e., ‘blind’ cuts)," according to court documents. Smith & Nephew asked Judge Marilyn Huff to dismiss the case, arguing that federal law preempts any claims against it because the Birmingham device was approved by the FDA.
Huff yesterday agreed to dismiss 2 of Chao’s claims, that the design of scissors used in the hip replacement procedure in part caused him to botch the surgery and that Smith & Nephew failed to warn him not to use the hip implant with an obese patient.
"The court concludes that plaintiffs’ claim related to the design of the scissors is preempted," Huff wrote, according to court documents. "The evidence before the court shows that defendant Smith & Nephew provided adequate warning to Dr. Chao regarding the danger of performing the [Birmingham hip replacement] procedure on an overweight patient, and that Dr. Chao decided to proceed anyway. The court declines to impose an additional duty on a device manufacturer to 2nd-guess a practicing physician when that physician has already received the FDA-mandated warnings. Accordingly, the court grants defendant’s motion for summary judgment with regard to the failure to warn."
But another claim, that Smith & Nephew failed to adequately train Chao, will stand, the judge ruled.
"Based on the current record, the court denies without prejudice defendant’s motion for summary judgment regarding the types of training the FDA’s PMA required Dr. Chao to have. Since fact and expert discovery are not yet completed, the parties may file an additional motion for summary judgment, in accordance with the court’s case management order," Huff wrote, according to the documents.
It’s not the 1st time Chao has run into legal trouble, according to the San Diego Union-Tribune. In addition to a $7.5 million jury award in 1 case involving A jury awarded 1 former patient $7.5 million in damages in 1 case; in another case, a patient "suffered nerve damage from a hip resurfacing procedure in 2007," according to the newspaper, and another "who suffered a blood clot in one leg and a pseudoaneurysm after knee replacement surgery in 2010."
Chao has been sued by patients for malpractice, personal injury, negligence or fraud 20 times since 1998. California’s medical board is seeking to have his license revoked, according to the newspaper.