Bad News for Bair Hugger Litigants
In January of this year, a Minnesota state court dismissed 61 lawsuits claiming the warming device injured patients. In its decision, the court asserted “there is no generally accepted scientific evidence—and plaintiffs offer none—that the risk of infection associated with [forced air warming] is greater than that associated with patients who are not warmed during surgery.’’ The court also said there is no scientific evidence that other warming devices used for the same purposes have a lesser infection rate than those with forced-air warming. The court called out the truth: there is no verifiable link that the Bair Hugger blanket warming system actually caused the patients’ infections and further injuries. The outlook isn’t looking good for Bair Hugger litigants as the cause for their complaints are emerging as baseless. Until a patient can show the Bair Hugger warming system directly or more than likely caused their injury, lawsuits against 3M will be unsuccessful.
More Dirt to the Story
But there’s more dirt to this story than just dirty air.
In court documents, 3M asserts that Augustine “was the original inventor and developer of the Bair Hugger patient warming system. After being forced out of his own company, he pled guilty to Medicare fraud, developed a competing ‘HotDog’ warming system, and immediately began a prolific, sustained and often-concealed campaign to attack the Bair Hugger system.” In its opinion, the court acknowledge that Augustine “blatantly and unapologetically threatened Defendants with negative ‘rhetoric’ and ‘studies’ with pre-determined findings to pursue a business advantage.” Come to find out, one of the “experts” that testified against his own product was actually a disgruntled inventor seeking one serious vendetta.
And What About the Recalls?
However, the Bair Hugger warming device has not always been foul-proofed. In January 2018, 3M recalled 165,000 Bair Hugger warming blankets for a design defect. Some redesigned blankets failed to fully inflate and 3M warned that the partial inflation could prevent proper warming. One patient suffered hypothermia during surgery when a Bair Hugger blanket failed to fully inflate. Other than this mishap, there is no proof that the Bair Hugger warming blanket threatens patients.
Why So Many Lawsuits?
But if scientific research, the FDA, and the courts are standing with Bair Hugger, why are there so many lawsuits?
When it comes to product liability and personal injury lawsuits, lawyers are looking to strike gold. In the well-known McDonald’s coffee case, an elderly woman suffered severe burns from a scalding-hot cup of coffee from McDonald’s and filed a product liability lawsuit. Initially she sought out the costs for her medical expenses, but McDonald’s refused to pay up. A jury eventually awarded the scorched victim the $200,000 she requested for medical and other compensatory damages, in addition to $2.7 million in punitive damages.
In another case, a jury concluded that Merck had intentionally misled the FDA regarding the safety of a painkiller known as Vioxx. The plaintiff suffered from a heart attack after using the pharmaceutical product for several years. He was ultimately awarded $4.5 million in compensatory and punitive damages. With any chance to win big, lawsuits alleging product-related injuries will likely continue for Bair Hugger.
The Key Takeaways
Every orthopedic physician should pay attention to medical products that are at the center of lawsuits. Negative publicity from those lawsuits may come back to you in the form of patient concerns. As for Bair Hugger, stay tuned, for sure.
