FDA’s Quality System Regulation – Management With Executive Responsibility #2

Continuation

In the first part of this Blog I reviewed what FDA expects of Management with Executive Responsibility as spelled out in its Quality System Regulation and what FDA inspectors will be looking for in on-site inspections as spelled out in FDA’s Quality System Inspection Technique (QSIT). The regulatory emphasis is quite clear. 

Insurance Company Litigation Study

Next I want to review the observations about Management With Executive Responsibility from the unpublished findings of the litigation history of a Medical Device Insurance Company. A sample list of observations about management is quite interesting:

• Management failures frequently occurred due to noncompliance with FDA, EU Medical Devices Directives and other regulations and unawareness of the requirement for notification to the appropriate regulatory bodies and the attention that regulators would place on clinical studies

• Management staff of new emerging medical device companys selected to conduct clinical trials/studies often do not possess the appropriate expertise/experience with clinical investigations. They are very familiar with the research and development of the device under study, but often do not have the professional clinical competencies needed to manage a clinical study.

• Management often has shown a failure to use proper or adequate legal assistance to review, launch or be involved in clinical studies.

•  Management often shows a lack of indemnities/disclosure in the informed consent agreements between IRBs, sponsors and patients of clinical studies.

• There often are ethics issues regarding “conflicts of interest.”

• The study found that medical device manufacturers and their contract manufacturers often relied on the mistaken belief that they are immune from product liability because of their manufacturing relationships with each other. These are situations where no risk management techniques have been applied before beginning the manufacturing – actions that could have helped avoid potential exposure to product liability litigation.

• Contract manufacturers supplying a component part to device manufacturers often did not carry any product liability insurance coverage and this was not questioned by the device manufacturer.

• The study found management failure to comply with FDA Quality Management System regulations for contract manufacturing agreements.

• In this era of outsourcing, the study found that contract manufacturing agreements often were deemed unenforceable in foreign legal jurisdictions.

• Management often failed to create a product safety policy statement or reference patient or product safety in the company’s quality statements under the mistaken belief by top management that the quality statement alone is adequate on the subject.

• Management had philosophical conflicts in which members of management teams wanted to fight FDA and their “observations” or “warning letters”, rather than mutually cooperate in resolving implementation plan for integrating the observations into their manufacturing processes.

• Several product liability claims that were taken to jury trials mentioned the use of the company’s quality management system and quality manuals against the manufacturer – the company’s own quality processes were not being followed or audited.

• The study noted a lack of company management staff training on product safety and quality management systems and the documentation of this training.

• The study found that in most cases management teams were very lean in young medical device firms in early commercialization; untrained and unfamiliar with the basic principles of product liability avoidance.

• Management ego issues were noted as confused in regards to product liability risks when management teams decided to fight FDA citations/observations versus demonstrating a spirit of committed cooperation to correct or arbitrate observations.

• In many medical device companies that experienced product liability claims, executive management underestimated the amount of time and corporate resources that would be needed to defend the company against product liability litigation.

• The silence of senior management in regard to product liability litigation was seen as their acceptance of the behaviors that caused or led to the product liability litigation.

• A lack of general and specific training for managers concerning their product safety responsibilities was noted as a recurring problem in the management of product liability avoidance.

As noted earlier, this is sample drawn from a much larger list of observations. Each observation came as a cost to each of these companies resulting in increased litigation expenses to the companies above the amounts paid by their insurance companies, possible FDA fines and punitive damage losses. And of course, increased  premiums and an increased deductible. 

Warning Letters

Finally, I wanted to look at some FDA 483 Warning letters regarding Management With Executive Responsibility: 

August 5, 2011 – Failure of management with executive responsibility to review the suitability and effectiveness of the quality system at defined intervals and with sufficient frequency to established principles to ensure the quality system satisfies the requirements of 21 CFR 820, as required by 21 CFR 820.40.

For example, according to your firm’s Executive Vice President your firm has not established management review procedures.

For example, according to your firm’s Executive Vice President there are no quality audit procedures and no quality audits have been performed. [The letter goes on t detail other failings of top management.] 

March 16, 2011 – Failure of management with executive responsibility to review the suitability and effectiveness of the quality system at defined intervals and with sufficient frequency according to established procedures to ensure that the quality system satisfies the requirements of 21 CFR 820 and the manufacturer established quality policy and objectives as required by 21 CFR 820.20(c). For example, your firm has not conducted any management reviews of your quality system.

October 1, 2010 – Failure of management with executive responsibility to review the suitability of the quality system at defined intervals and with sufficient frequency according to established procedures to ensure that the quality system satisfies the requirements of this part, as required by 21 CFR 820.20(c). For example, your firm failed to establish and implement written management review procedures. 

 November 24, 2010 – Failure of management with executive responsibility to review the suitability of the quality system at defined intervals and with sufficient frequency according to established procedures to ensure the quality system satisfies the requirements of 21 CFR 820, as required by 21 CFR 820.20(c). For example, according to your firm’s management, the firm does not conduct management reviews and has not established management review procedures.

*Failure to establish quality system procedures and instructions, as required by 21 CFR 820.20(e). For example, according to you, your firm does not have quality system procedures.

* Failure of management with executive responsibility to establish its policy objectives for, and commitment to, qualities required by 21 CFR 820.20(a). For example, according to you, your firm has not established a quality policy. 

Conclusion 

The preceding are just a few statements concerning Management With Executive Responsibility contained in FDA Warning Letters sent to medical device manufacturers. The full letters are much more extensive detailing other concerns specific to these companies. My point is that FDA’s Quality System Regulation (QSR) places significant emphasis on the responsibilities of top management. The issue concerns the health and safety of the American public. 

I want to repeat what was written in the first Blog. I have worked with numerous medical device companies where Management’s understanding of FDA’s Quality System Regulation ranged from intelligent to clueless. I find the latter condition to be scary because it usually is accompanied by that wonderful combination, “arrogance and ignorance.” This is especially true when the company is owned by a single individual and driven by his ego and self-perceived brilliance. Not a healthy combination or work environment. Consultants need to consider carefully which companies and management they choose to work with.

As noted at the conclusion of the first Blog, my focus on International Regulatory Compliance has always included both the requirements of regulatory authorities and the legal implications of compliance, non-compliance, documentation and sloppy attention to detail that could result in a lawsuit in a Federal or State courtroom. I also focus on product safety and the steps necessary to create a safe product. If you have questions concerning medical device litigation, you can contact me for a free preliminary consultation at my new e-mail address jameskolka@gmail.com.