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Years of throwing batting practice to Little League and Babe Ruth teams has revealed two things: (1) the only meaningful physical characteristic that we on the blog have in common with major-league pitchers is the presence of a rotator cuff that can be injured, and (2) physical therapists are very good at what they do.  While no amount of physical therapy will get our fastball to 90 mph – sadly, not even 70 mph anymore – it can fix your shoulder.

Physical therapists know what they’re doing.  They identify the muscle, joint, tendon or ligament that is injured, isolate the part that needs to be strengthened, and devise subtle exercises that work directly on those areas.  It’s amazing what they can accomplish with an elastic band and the right exercise.  They are proficient at instruction too, helpfully explaining the technique and even purpose of the exercise: “this exercise strengthens your infraspinatus thing-a-ma-job” or “this stretch will lengthen your subscapularis watcha-ma-call-it.”  This is no doubt due to their years of training and experience.  The court in Seifried v. The Hygenic Corp., 2013 Tex. App. LEXIS 9791 (Tx. Ct. App. Aug. 6, 2013), understood this:

Like doctors in the prescription drug situation, physical therapists are experienced in treating and caring for patients, are trained in and familiar with the use of resistance bands used for physical therapy, and supervise and monitor the patients as they use the bands. The therapists directly interact with the patient and provide direction and a personalized exercise regimen tailored to the particular needs of the patient.

Id. at *9.

What makes this interesting for us is that their experience and training and their status as a middle person between patients and physical therapy product manufacturers can make them learned intermediaries:

[L]ike a doctor prescribing drugs, a physical therapist designing and supervising a physical therapy regimen can pass on applicable warnings to the patient, based on the patient’s physical condition and particular needs.

In other words, the learned intermediary doctrine isn’t just for doctors.

In Seifried, the defendant was The Hygenic Corp., the manufacturer of the resistance bands used by the plaintiff in his physical therapy sessions.  Hygenic distributed the bands in bulk rolls to plaintiff’s hospital.  The therapists at the hospital cut off lengths of the roll to create bands suited to particular patients.  Hygenic gave the hospital a product manual and accompanied each bulk roll shipment with a product warning insert.  The manual and insert warned against using a band in a manner that would allow it to snap toward the head and, further, required the use of eye protection during arm curl exercises.  Plaintiff used the bands for just such exercises but followed neither warning. He injured his eye.  He did all of this under the instruction and supervision of one of the hospital’s physical therapists.  Id. at *2-4.  When the plaintiff sued, Hygenic invoked the learned intermediary doctrine.  And won.  The court held that Hygenic properly directed its warnings to the hospital, not the patients. The therapist was capable of passing the warnings on to her patients and in a good position to do so:

It was reasonable for Hygenic to rely on the Hospital and its physical therapists to pass on to its patients any warnings applicable to a particular exercise.  The physical therapist here, Cossey, was a trained, certified, health care professional, with training specific to the use of a resistance band.  She had used Thera-band resistance bands on multiple occasions, and she had read both the warnings on the insert and the product manual’s instructions regarding how to safely use the band.  She was familiar with the properties of the band and its safe use.  With her supervisor, Cossey established Seifried’s physical therapy plan and the exercises Seifried was to conduct with the resistance band.  Cossey instructed Seifried on the use of the resistance band and demonstrated exercises to Seifried.  Cossey was therefore capable of warning Seifried of the risks associated with the use of the resistance band while directly supervising its use.

Id. at *10-11.

OK, good.  Now we know that, when the facts are right, makers of rehabilitation devices may rely on the learned intermediary doctrine.  But the Seifried opinion offers one last tiny gem.  Plaintiff argued that the defendant waived its right to assert the learned intermediary doctrine because it failed to plead it as an affirmative defense.  Id. at *13-14.  If you had cyberspace vision, you’d see that all of the authors of this blog just collectively rolled their eyes at this argument.  Why?  Simple. The learned intermediary doctrine isn’t a defense, affirmative or not.  It never has been.  It’s a doctrine that identifies the person to whom the manufacturer of a product owes its duty to warn.  More specifically, it is the legal recognition that under certain circumstance the manufacturer’s duty runs to a learned intermediary – such as a prescribing doctor or, now, a physical therapist – rather than the ultimate user of the product.

The learned intermediary doctrine, however, is not an affirmative defense.  Rather, it is a consideration to evaluate to whom a defendant owes the duty to warn.  Hygenic timely asserted the doctrine in its motion for summary judgment and contended that it owed no duty to Seifried; it was not required to also plead the doctrine separately as an affirmative defense.

Id. at *14.  And with that, the appellate court upheld the trial court’s grant of summary judgment to the defendant.

Now, back to our shoulder physical therapy.  We’ll be sure to wear our protective goggles.