Hazard Alerts and Product Liability: Can a Normally Functioning Medical Device be a Defective Product?

Abstract

This article considers whether a prosthetic medical device which has a risk of malfunction, but which continues to work normally for its intended purpose, is a defective product within the meaning of the Consumer Protection Act 1987 and the Product Liability Directive 85/374/EEC. The article examines how an English court may approach the question of whether a cause of action exists based on the risk that such a device may prematurely fail, in light of Mr Justice Burton's reasoning in the Hepatitis C case.