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510(k) Process Comes Under Renewed Scrutiny by Legislators, Awaiting FDA Response as Proposed Legislation Remains Stagnant| Permalink
by Ashley Zborowsky, UMN Law Student, MJLST Notes & Comments Editor
Several months ago, Representative Edward J. Markey (D-Mass.) and Senator Jeff Merkley (D-Ore.) wrote a letter to Jeffrey Shuren, Director of the Center for Devices and Radiological Health (CDRH) at the U.S. Food and Drug Administration, calling for an overhaul of the 510(k) pre-market notification database. The legislators cite reports of defective medical devices cleared via the 510(k) process in recent years, such as the DePuy® artificial hip, that have caused "grievous and irrevocabl[e]" harm to patients.
The issue? Most devices subject to premarket review are cleared through FDA's 510(k) process which provides expedited approval for products that are deemed "substantially equivalent" to an existing predicate device. While the 510(k) process allows patients earlier access to devices, the system is inherently flawed. Referred to as "predicate creep," the 510(k) process clears generations of devices--none of which have been subject to the exacting scrutiny of pre-market approval (the PMA process). As Markey and Merkley cite in their letter to Shuren, many predicate devices upon which new products rely for 510(k) clearance themselves have been recalled by manufacturers due to "fundamental design flaw[s]."
MJLST faculty editor-in-chief Ralph Hall and Andrew Von Eschenbach, former commissioner of the U.S. Food and Drug Administration (2005-2009), wrote an opinion piece in the June 18 Wall Street Journal on ways to move medical devices more quickly into the hands of health care practitioners. They cite the example of the American-made SAPIEN Transcatheter Heart Valve (pictured right) that was available to patients in Europe four years before those in the United States. Read "FDA Approvals Are a Matter of Life and Death" (WSJ). (NOTE: the WSJ article can be viewed in full by using Google to search "FDA Approvals Are a Matter of Life and Death" and then clicking the first link to WSJ in the results.).
In a related article in MJLST issue 13.1, Professor Hall and Eva Stensvad outlined problems with the 510(k) medical device clearance process and argued that while the Institute of Medicine (IOM) is generally an invaluable policy resource, invaluable policy resource, its Committee on the Public Health Effectiveness of the FDA 510(k) Clearance Process is not fairly balanced and unable to fairly and accurately perform its duties. Read: Left to Their Own Devices: IOM's Medical Device Committee's Failure to Comply.