Tipp FM Legal Slot – 9nd September 2014 – PIP Implant Update & Parenting Plans
On Tipp FM, John M. Lynch, Principal Solicitor, spoke to Seamus Martin on “Tipp Today” about the PIP Implant Update & Parenting Plans.
Listen to John’s discussion:
PIP Implant Update
Tell us about recent developments in the area of the PIP implant recall?
PIP breast implants were recalled in Ireland in March 2010. The defective implants were produced by French company Poly Implant Prothese (PIP). The company ceased business in 2010.
Its chief executive has been jailed for four years for aggravated fraud.
PIP implants were used in three private practices in Ireland – the Shandon Street Hospital, Cork, the Clane Hospital, Co. Kildare and Harley Medical Clinic, Dublin.
Seeing as the manufacturers, PIP, closed down who can the patients take a legal case against?
The added complication here is that the company, PIP, is no longer trading and therefore legal action was considered against the Irish suppliers or other companies in the supply and manufacture chain under the Product Liability Code. The other option considered was to consider taking a case under the Sale of Goods & Supply of Services code.
The Health Service Executive has told the affected women it will fund their removal on medical grounds, but will not pay for replacement implants.
It says international reports show that there are no medical, toxicological or other data to justify removal of an intact PIP implant.
This means women have to fund the replacement of the devices, if this is their desired option.
The difficulty in taking these cases has been that many of the clinics who carried out these operations have since closed down and the companies behind them ceased trading. We have also encountered problems with no insurance being in place to cover these situations and so the problem has arisen as to who a claim can be successfully taken against.
However, recent judgments in the French courts have opened up the prospects of affected women claiming compensation against the company which certified the product in that country.
Last November, the French courts ordered an interim payment of €3,000 each to a group of French women who took proceeding against a German company, TUV, and its French subsidiary, which certified the product, with the full extent of compensation to be assessed at a later date. An appeal is currently underway in the matter.
Similar proceedings are now being explored on behalf of British and Irish women and the possibility of joining them to the French class action is being suggested.
Although class actions themselves are not allowed to be initiated in Ireland due to the way the legal system works some European states have rules on class actions with some resemblance to the modern class action known from the United States and some states have procedural tools only allowing collective litigation similar to class actions within specific areas, e.g. in regards to the protection of consumers. Because however we are EU members it may then be possible for women here to avail of this course in seeking to be compensated.
How soon must a case be brought?
Some of our clients have been concerned that they may be out of time to bring a PIP compensation claim because their surgery was performed several years ago. We need to assess all PIP claims on a case by case basis and if you have had PIP implants, please contact us without delay
What problems are the implants causing for patients?
The PIP implants have an unusually high rupture rate, which effectively means that gel from the implants could leak into a patient’s body. Following the liquidation of the company an investigation revealed that PIP was using silicone gel that was not approved by the health authorities. While there may be a possible cancer risk associated with the implants a definite link has not yet been established, however a death of a women in France in 2010 may be linked to the implant and is currently being investigated. 1,140 women in France have suffered from ruptures of their PIP implants, according to the French medical regulator AFFSAPS, and health officials estimate that over 30,000 defective PIP implants, in France alone, will need to be removed.
What advice have the patients received so far?
All Irish hospitals that used the PIP implant were advised by the Irish Medicines Board to contact women who may have received the defective implant since 1st January 2001. From our experience with recall cases we highly recommend that women who received the defective PIP implants contact their surgeons immediately and, if necessary, seek an independent second opinion.
In all cases we are advising Clients to immediately take the following steps:
- Firstly we need to find out whether you have PIP implants. We can do this by requesting a copy of your records under the Data Protection legislation from the clinic where you had your implants. The operation records page in your records should identify the makers of your implants. We are assisting many Client at this stage is establishing whether they have had PIP implants.
- If you have PIP implants we would suggest that you contact your GP or the clinic where the operation took place to request a scan. It may take some time to get your records so you might not wish to wait for these before you seek a scan. An MRI scan will enable your medical practitioner to assess whether your implants pose an immediate risk, i.e. whether they have ruptured. You must be persistent in this if your request is denied. From experience we are discovering that Clients are getting quicker referrals for scans through their GPS.
- We are aware that many Clients have had difficulties in sourcing Clinics who will perform the appropriate scans. We are aware of a number of clinics that are presently performing these scans and are happy to assist our Clients in this regard.
What will the scan show?
Your Scan may reveal one of two outcomes:
- If there is an issue with the implant, you may wish to have them removed and will need to consider your options from a medical and legal point of view.
- If your scan shows that there is currently no sign of issues with the implant, you may like to keep your situation under review and will need to consider your options from a medical and legal point of view.
What is a parenting plan?
Parenting planning is an agreement between parents of a child who are no longer in a relationship on common issues which affect the child
When parties who have children separate, there is a fall out from the separation. Maintenance, care arrangements, schooling issues and matters which affect the welfare of the children must be dealt with.
There is a growing belief that litigation – the court system – is not the best way to resolve disputes on these issues and most of the time people prefer to avoid court.
A parenting plan allows parties to come to a mutual agreement on these so that both parents and the extended family can avoid conflict when issues arise and the children can benefit from consistency in how both parents parent them.
What are the ground rules if a parenting plan is to be agreed?
Parenting Plans can often be agreed on by way of structured negotiation , which we spoke about recently. In coming to agreement there are certain ground rules that both sides would sign up to:
Ground Rule 1
That the negotiations shall be conducted on a ‘without prejudice’ basis but that in the event of a breakdown occurring the parties willagree the extent to which it will be allowed to disclose to the court the information involved
Ground Rule 2
That each party shall make full and frank disclosure of all particulars relevant
Ground Rule 3
That all reasonable steps shall be taken by each party to verify any information disclosed if required
Ground Rule 4
That each party will update the disclosures already made if needed
Ground Rule 5
That any agreed time-frame for the completion of the negotiation process may be enlarged or reduced as agreed
Ground Rule 6
That the parties will try to reach interim arrangements or agreements as appropriate
Ground Rule 7
That none of the issues to be resolved between the parties shall be deemed to be fully resolved until all issues have been fully resolved.
Ground Rule 8
That following the commencement of the negotiations any referral of a matter to a professional, expert or specialist person will be by agreement only
Ground Rule 9
That if, in the course of the negotiations, relationship or behavioural difficulties arise between the parties, they shall each try to address these
Ground Rule 10
That from the commencement of the process and for as long as the negotiations are ongoing, neither party shall, for the purposes of exerting pressure on the other, threaten or institute proceedings or take any further steps in existing proceedings
Ground Rule 11
That, in the event of the parties being unable to agree on a division of the contents of the family home, they will agree on a formula for their division
Ground Rule 12
That the parties will try to have a co-operative, problem-solving approach to the resolution
Ground Rule 13
That should either party decide, before the bargaining phase has been entered into, not to continue with the negotiations, then that party shall without delay notify the other party
Is it legally binding and enforcable?
Not as such – a painting planning is an agreement between the parties and is based on both sides coming together in good faith with a willingness to abide by the terms agreed for the benefit of the whole family. It is then based on both parties commitment to make it work.
You can have a situation however where the terms agreed could be made the subject of a court order which would be enforceable.
What are Some Important Points to Bear In Mind When Discussing Matters About Children
- Children should feel involved in planning for their future if at all possible.
- In most cases, it is preferred if they keep in regular contact with each parent and the best possible relationship with both parents should be maintained. They benefit from stability in their relationships with family and those around them and can find changes, even small ones difficult.
- They need clear and honest explanations, and information appropriate to their age about what is happening and why and should be listened to if they have an opinion to express.
- They should not be forced to express a view (for example which parent they prefer to live with) or made to feel that the responsibility for any decision rests with them.
- They need their views to be taken into account before any final decisions are made and if decisions are made against their wishes, this should be acknowledged and the reason for doing so explained to them.
- They need to know their family history, origins and relationships in order to have a clear sense of belonging.
- They will usually want to keep in touch with their wider family (brothers and sisters, any stepfamily, aunts, grandparents, etc) and family friends.
- They need to know how they can keep in touch with people they care about, for example by contact visits, letters, phone, e-mail, etc.
- They may feel insecure about their parents’ new relationships, if and when they occur.
- It is important to introduce any new long-term partners sensitively.
- Each child’s needs are different, and arrangements for one child may not be appropriate for their brother or sister.
- Needs change as children grow up and as your circumstances change.
- Try to look ahead and discuss the impact of change together, and with your children, before difficulties occur.
What about contact arrangements – are there any guidelines here as often this can be an area that causes problems?
- Contact arrangements should be discussed with your children and their needs and wishes taken into account.
- There is no right set of arrangements that will suit everyone.
- Contact visits are meant to be enjoyable, but they can be stressful at first, for all concerned. It is worth persevering with, because they can benefit you all.
- It is helpful for children to have a regular pattern of contact visits which should be established as soon after separation as possible.
- The best pattern of visits will vary with the age of the child. Shorter, more frequent visits may work better for younger children.
- If visits are very short, or very infrequent, it may be difficult for a parent and child to feel relaxed together.
- Overnight stays, where possible, are important in allowing the parent and child to experience ordinary daily routines together.
- Failure by either parent to stick to the arrangements for contact may be distressing for a child and make them feel less secure.
- Because emotions are often raw following a separation, it may be difficult for parents to agree on contact arrangements. If there is no practical alternative a neutral contact point/party may be used temporarily.
- If a child does not want to go on a contact visit it is important to try to understand why and to discuss this with those involved.
- Discussing changes in your family situation can benefit you and your children. It can help avoid misunderstandings and friction between you as parents. It will show your children that they continue to be important to you. Clear communication will also help make the changes run as smoothly as possible.
What points should parties bear in mind when communicating with eachother?
- Think about when, where and how often you are going to discuss things.
- Respect each other’s views.
- Support each other as parents in, for example, discipline or the children’s education.
- Think about your continuing responsibilities as parents, rather than the difficulties of your past relationship.
- Try not to row or criticise each other in front of your children.
- Remember that we all make mistakes, and just because one particular topic provokes a row, it does not mean that you should give up talking altogether.
- Make time to talk to each child separately, as well as together.
- Show your children that you support each other as parents, even though you can no longer live together.
- Use words and ways of talking that don’t show blame.
- Explain your plans clearly and what effects these will have, and listen carefully to your children’s views.
- Reassure your children wherever possible.
- Remember that each child is different, and will react in their own way to your separation or divorce.