Products Liability Issues in Health Care Introduction

Warranty Theories b Predate Strict Liability b Related to UCC Warranties b Cannot Disclaim for Personal Injuries b Based on Promises 2

Express Warranty b Manufacturer Is Held to Specific Promises b Shatterproof Windshield Case • • • Claimed It Was Just “Puffing” Court Said It Was a Clear Promise Did Not Matter If It Was Impossible b Can Be Written or Verbal b Can Physicians Give Binding Warranties About Products? 3

Implied Warranties b Implied From the Context of the Sale • A Product Is Safe for What It Is Sold for • FDA Approved Drugs Have Only the Stated Risks b Implied Warranty of Fitness for a Specific Purpose • Manufacturer or Seller Says the Product Is Good for Something Other Than Its Usual Purpose • Use of Drugs For Unapproved Purposes 4

Jeep Case b Jeep Sold for off the Road Use • Rolled and Killed and Injured Passengers • Made Like a Sardine Can • Manufacturer Claimed Improper Use b How Do You Prove? • Advertising • Representations by Sales Persons 5

Public Policy b How Do You Prove Negligence? b Why Is This Hard for Products? • • Generic Goods - No Specific Information Defendant’s Have Lots of Resources b Defects Affect Lots of People b Strict Liability Encourages Safety 6

Restatement of Torts 402 a (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if b (a) the seller is engaged in the business of selling such a product, and b (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. b 7

Defenses under 402 a b (2) The rule stated in Subsection (1) applies although b (a) the seller has exercised all possible care in the preparation and sale of his product, and b (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. 8

Is It a Product? b Product Versus Service • Software • Custom House • Customer Designed Product - Rides at Disney Land • Big Issue In Health Care b Special Shield Laws • Blood Banks • Vaccines 9

Is It in the Stream of Commerce? b Display at Trade Show b Custom Machine at Factory b Do You Have to Buy It? • • Test Drive at the Car Dealer? Broken Cookie Jar Lid at Walmart? Leases Give-aways b Experimental Drugs and Devices 10

Is the Defendant a Seller? b Everyone In The Chain is Liable • Not the Case in Health Care b Casual Seller? • You Sell Your Used Car • You Make Clocks for a Hobby and Sell One b Special Rules for Used Goods b Manufacturer Is Always Liable 11

How is Health Care Different? b The Patient Is Not the Buyer b The Doctor Is Not the Seller b The Hospital Is Not (Usually) a Supplier b Who Do You Warn? b What Is the Role of The Learned Intermediary? b Otherwise The Same Theories As Consumer Products 12

Is the Product Only Ancillary to a Service? b Is It Why You Get the Service? b Who Selects It? b Does the Provider Make Money off It? b Hospitals and Physicians • • Traditionally Exempt Economics Have Changed Missouri Tried Limiting the Exception Struck Down 13

Expected and Does Reach Consumer Without Substantial Change? b Has There Been Unanticipated Modification? b Is It Substantial? b Is There Expected Modification by an Intermediary? b Does the Manufacturer Know That Users Modifies the Product? 14

Manufacturing Defect? b Is Something Broken? • Was It Made Incorrectly? • Was There a Defect in the Material? • Improper Sterilization? b Is It a Component Part That Fails? • Is the Component Part Manufacturer Liable? • Is Made for This Specific Purpose, or Is It Generic? • O-Ring in Anesthesia Machine 15

Design Defect? b Selection of Parts - Shopsmith b Bad Design - Jeep b Alternative Design? • • Feasible? Cost-effective? Does It Create New Risks? Was It Known or Knowable at the Time? b Big Issue In Health Care 16

Proving Defects b Manufacturing Defects • Show What the Defect Is • Show Why It Creates the Danger • Show It Meets the Other Elements b Design Defect • Must Show That It Was an Improper Design • Really a Negligence Standard 17

How Is the Danger Linked to the Defect? b Failing to Prevent Known Risks • Absence of Safety Devices • Defective Safety Devices b Does It Cause the Injury? • Directly? (Weak Chain on the Chainsaw) • Indirectly? (Crashworthiness) b Does It Change the Way a Consumer Would Expect the Product to Work? 18

Unreasonably Dangerous? b Based on Consumer Expectations b Chainsaws V. Sump Pumps b Drug Cases • Chloramphenicol Case • Chloroquine 19

Unpreventably Dangerous Products Warnings and Information Are Critical

Comment I • Products That Are Dangerous As Used – Good Whiskey – Good Tobacco • Are There Unexpected Risks? – Fetal Alcohol Syndrome – Premature Babies • Were There Misrepresentation? – Tobacco Additives – Claims that Smoking Is Not Addictive 21

Comment K • Drugs and the Like • Always Dangerous – Must Balance Risks and Benefits – Key Is Warning/information • Who Do You Warn? – Physician? – Patient? – What About Home Health Care? • Is the Info Understandable for the Audience? 22

Was There Misuse? b Could It Be Anticipated? • Lawnmower Cases • Juggling Chainsaws b Is the Misuse Directly Related to the Injury? b Does the Manufacturer/Seller Encourage Misuse? • Over-Promotion • Selling For Improper Use - Oximeters 23

Is It a Warning Issue? b Is There Enough Information? b Is It Understandable? • • What Reading Level and Language? Is It Diluted? b Is the Warning Obvious? • Where Is It? • How Big Is It? b Who Gets The Warning? 24