PIP scandal to be addressed by Dutch Supreme Court

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You Are Here:, Contract law, EU law, Geen categorie, Medical devices, PIP, Tort lawPIP scandal to be addressed by Dutch Supreme Court

The outcome of damages actions in the Netherlands involving the liability of doctors, clinics and hospitals responsible for the placing of PIP silicone breast implants will likely be determined by a ruling of the Dutch Supreme Court, expected for Spring 2020.

Late August 2019, the Court of Appeal in ‘s-Hertogenbosch referred questions to the Dutch Supreme Court (Hoge Raad) under the national preliminary reference scheme, asking for the interpretation of the strict(er) liability rule of the Dutch Civil Code (Art. 6:77 DCC). This rule holds that damage caused by the use of an unfit object in the course of the performance of a contractual obligation must be borne by the promisor, unless the circumstances of the case make such attribution of risk unreasonable. The use of defective PIP implants by doctors, clinics and hospitals for the performance of a medical services contract has drawn in the potential liability of these actors under Art. 6:77 DCC. The preliminary questions invite the Hoge Raad to consider the scope of the liability rule and offer a set of circumstances that would offer a test to evaluate the liability of the defendants.

In other European countries (France, Germany, Spain, UK) damages actions brought against doctors, clinics and hospitals working with PIP implants have failed principally for the reason that plaintiffs could not successfully show professional negligence on the part the defendants. While the liability rule of Art. 6:77 DCC offers plaintiffs in the Netherlands a procedural advantage (i.e. the burden of proof to show that the attribution of the risk for non-performance is on the promisor), the exemption to the rule is premised on considerations of fairness.

The preliminary ruling is expected in the Spring of 2020. The ruling will determine the faith of the various damages actions involving PIP victims in the Netherlands, which all revolve around Art. 6:77 DCC. That said, the ruling will provide much needed guidance is the many other cases pending in the Netherlands involving the use and implantation of medical devices, such as metal-on-metal-hip prostheses and vaginal mesh implants.

In advance of the much-expected ruling Barend van Leeuwen and myself have written an article in the Dutch Journal of Consumer Law in which we discuss (in Dutch!) the preliminary questions in more detail. We do this against the backdrop of the full spectrum of litigation that the PIP scandal has unfolded since 2010 in Europe.

Please visit the pre-publication of the article here

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