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.
"Dr. Chao performed the BHR procedure on a patient who suffered significant complications and injuries caused by the BHR procedure, despite Dr. Chao precisely following the training provided by Smith & Nephew," according to the documents. "Smith & Nephew caused, in whole or at least substantial part, the loss and damage suffered by the patient and her husband, and in turn the losses suffered by plaintiffs in connection with the claim made against them arising from the BHR procedure performed on May 30, 2007. But for the defendants’ failure to properly develop reasonably safe procedures and related surgical equipment, and to provide appropriate training and warnings, the plaintiffs would have suffered no claim against them and would have sustained no loss."
But Smith & Nephew moved to have the case dismissed, arguing that federal law preempts any claims against it because the Birmingham device was approved by the FDA.
"Dr. Chao’s claims are expressly preempted by Section 360k(a) of the Medical Device Amendments of 1976, U.S.C. 360k(a). Because the BHR system is a Class III medical device that received pre-market approval from the FDA, federal law preempts state law claims that would impose conflicting or additional requirements on the BHR device. Dr. Chao’s contentions that the scissors were improperly designed and that the training and warnings for this device were inadequate either ‘conflict with’ or ‘are in addition to’ the federal requirements. Accordingly, Dr. Chao’s claims are preempted and should be dismissed," according to court 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.