Federal Preemption
In 1976, the FDA was given the authority to regulate medical devices through the Medical Device Amendments (MDA). Devices that were on the market at that time were “grandfathered” and could continue to be sold, pending future review by the FDA. New devices had to be submitted to the FDA before sale. If the manufacturer can show that the new device is substantially equivalent to a device that has been on the market since before 1976, and that the device is manufactured to the FDA’s standards, then the FDA must permit the device to enter the stream of commerce with only a cursory review to determine whether it is the same as a pre-1976 device and passes basic safety standards (e.g., it will not shock anyone or come apart inside the patient. It is called 510(k) clearance, for the statutory section that establishes the procedure. Devices that are not equivalent to pre- 1976 devices are subjected to an intensive new device approval process that is similar to the new drug approval process. This process can require extensive clinical trials and many redesigns of the device and its labels and manuals. While this intensive review of new medical device technologies is costly and time-consuming, it has an important legal advantage to the manufacturer: Design elements and labels specifically considered and approved by the FDA receive some protection from state product liability claims. For example, if a pacemaker lead fails, killing a patient, the plaintiff must show that the lead was defective, if he is to recover. If the lead’s insulation failed because it became damaged during manufacture, then the plaintiff has a case. In many situations, however, the product was properly manufactured. Because pacemaker leads are delicate and can fail without being defective, the plaintiff will claim that the design is defective, perhaps because the manufacturer did not use a sufficiently strong alloy for the wire. If the FDA reviewed and approved the wire used as part of its review of the device, the courts have ruled that the plaintiff cannot second guess the FDA by claiming that the wire should have been designed differently. If the FDA approved the label for the device, then the plaintiff cannot claim that the label was defective because it did not provide adequate instructions or warnings.