Insurer sues Zimmer Biomet over coverage in patient death lawsuit

Carly Behm -  

Evanston Insurance Co. is suing Zimmer Biomet because the insurer argues it should not cover the devicemaker in a lawsuit involving a patient's death, according to court documents filed in the U.S. District Court for the Northern District of Indiana.

In 2019, Melody Hurley received a Beta-BSM injectable bone substitute material from Zimmer Biomet subsidiary Etex to treat a bone cyst in her shoulder, according to Evanston's lawsuit, filed Aug. 9. The Beta-BSM traveled through her body and allegedly caused pulmonary emboli and resulted in her death, according to the 2020 lawsuit referenced in Evanston's suit.

The 2020 patient death lawsuit was reported to Zimmer Etex on Jan. 30, 2019, according to Evanston's lawsuit. Zimmer Biomet made reports and follow-ups with the FDA, and in September 2020, the devicemaker received a demand letter seeking $23,000. However, Evanston said it received notice of the lawsuit in August 2021, about 10 months after the patient death suit was initially served.

The plaintiff in the 2020 lawsuit is seeking damages in excess of $75,000, and Zimmer Biomet's defense costs are also at issue, Evanston's suit said. Evanston is asking the court to rule it does not have to defend or indemnify Zimmer Biomet in the underlying lawsuit.

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