Medicolegal Review: Essure Lawsuits and Legal Strategies Adverse to Gynecologists

Abstract The minimally invasive Essure procedure for hysteroscopic sterilization is an ongoing target for litigation. While efficacious, this device’s safety has been scrutinized by the FDA due to alleged complications. Patients affected by these potential complications are filing lawsuits against Bayer, the manufacturer of Essure. Many of these lawsuits have been barred by preemption, a legal doctrine that limits what can be required of a product by state lawsuits once the FDA approves it. However, of the lawsuits allowed to proceed, the manufacturer has used a legal strategy termed the learned intermediary doctrine in an effort to shift blame to the gynecologist to absolve itself of liability. The learned intermediary only requires that a manufacturer inform the gynecologist of the risks associated with the device, and the gynecologist, in turn, must notify the patients through adequate informed consent. To incorporate the necessary components of informed consent, a gynecologist should include what a reasonable practitioner would consider pertinent to the discussion as well as what a prudent patient would want to know to make a treatment decision. This disclosure entails explaining the risks, benefits, and alternatives, which should be clearly documented in the medical records. Understanding the importance of proper documentation and the legal strategies used in suits will help gynecologists lessen liability exposure when using a medical device, such as Essure, being targeted for litigation.