SPECIFICALLY SPEAKING | PRODUCT LIABILITY
Nanotechnology
in Medicine
A Small Primer to Little Things with Enormous Potential
By nick Lopuszynski and Jim Pattillo
The introduction of nanotechnology into medical products and healthcare services is leading to significant
advances in many areas of medicine
and healthcare that border on the
realm of science fiction. While medical technology is constantly evolving,
the evolutions to new products and
processes do not come without risks.
The use of nanotechnology carries
with it the risk and responsibility to
produce safe products that meet the
dual goals of providing better results
to health issues on one hand while
not putting patients at undue risk on
the other.
A 2008 study by Ernst & Young suggests that by 2021, revenue associated
with nanotechnologies in the medical field will grow by $70 billion for
pharmaceuticals, $10 billion for diagnostics and $39 billion for medical
devices. As a result, nanotechnology
will economically affect every industry directly and indirectly tied to the
medical profession and healthcare
industry, including the insurance and
legal industries.
The Impact on Liability
Product liability jurisprudence
attempts to protect consumers from
undue harm caused by unsafe or
defective products. The application
of traditional product liability law
theories in medicine and healthcare
is already somewhat unique compared to product liability in other
industries since many medical treatments and products carry an inherent
risk. Those risks are always weighed
against the perceived likely potential benefits. When something goes
wrong and a medical device or product is involved, the product manufacturer is frequently a target defendant.
The use of nanotechnology increases
the risk and chances of a claim when
an adverse outcome occurs.
Although the issues of fact and expert
opinion in product liability cases
involving nanotechnology cases will
be novel, the legal theories in these
claims most likely will be similar to
traditional medical products cases.
However, at least initially, one can
expect that expert testimony on the
applicable standard of care and causation will be a difficult barrier to
