In recent years, US courts have seen a rise in lawsuits against medical device manufacturers alleging that they failed to provide adequate product training. While cases of this nature have not yet been brought into Canadian courts, it is likely only a matter of time.
In the States, the outcomes of these cases have varied. There have been instances where the court has acknowledged there may be a valid claim. In particular, there could be liability imposed on the manufacturer if it voluntarily provides training and has representatives attend procedures and advise physicians on the correct use of devices. However, other courts have rejected these types of claims, even where the manufacturer's representative was in the operating room. In this case, the court determined that a manufacturer's representative could not be expected to interfere in and potentially affect the outcome of procedures.
One of the issues for plaintiffs in Canada will be establishing that damages were caused by the training (or lack thereof) that was provided to a third party (the physician) by the manufacturer. Unlike the US, Canadian courts do not generally impose strict liability in product liability cases. From the perspective of a manufacturer in these cases, it will be important to demonstrate that all warnings and instructions it supplied was up to industry standards and adequately addressed foreseeable risks.
For more details of the failure to train cases that have been brought to court, see this article by Belinda A. Bain and Luke Johnston of Gowlings LLP.
