A Medical Device Dispute: Two Legal Routes
A dispute over a medical device in Georgia moves along two trajectories: the contractual one — repair, replacement or avoidance of the contract for a defective device — and the tort one — compensation for damage caused by the device. Both routes are governed by the Civil Code. It should be noted that the technical regulation of devices is subject to separate legislation and is not the subject of this page — what follows concerns only the civil-law machinery.
The Contractual Route: Repair or Replacement of the Defect
Where the sold item — here, the device — is defective, the seller must either cure the defect or, where the item is of a generic kind, replace it within the necessary period. The expenses necessary for curing the defect — transport, road, work and material costs — are borne by the seller. The seller may refuse either cure or replacement only where this requires disproportionately large expenses; and where the seller hands the buyer a defect-free item instead, it may demand the return of the defective one.
The buyer also has a stricter remedy: because of the defect, the buyer may demand termination of the contract under the procedure established by law, in which case the seller must reimburse the buyer's expenses. The practical choice depends on the character of the defect: for a usable device, replacement is often the faster way out; for unique equipment — cure and reimbursement of expenses.