The other day we posted about Von Downum v. Synthes, 2012 WL 5463900 (N.D. Okla. Nov. 8, 2012), primarily concerning its fraudulent joinder holding – in accord with the “overwhelming weight of authority” in other states – that a hospital cannot be strictly liable for claimed defects in drugs and medical devices that are used in medical procedures within its walls. Id. at *5. (Note: the defense still lost, but on other grounds).
“Overwhelming” authority, at least when it’s in favor of a pro-defense proposition, is something that we like addressing, so as we hinted in our previous post, we’re looking more deeply into the issue of hospital strict liability. While we almost always represent manufacturers, not hospitals, the notion that they could be strictly liable as “distributors” or “intermediate sellers” of our clients’ products is not a theory that we ever want to see the light of day. The answer’s simple – such liability would inevitably result in hospitals turning around and pointing the finger at our clients. We don’t like seeing defendants pointing fingers at each other. Almost always, the only beneficiary from that is the plaintiff. Not surprisingly, that’s often the precise reason why smart plaintiffs’ lawyers (don’t kid yourself, most of them are) press such theories.
The first thing we normally do in such situations is take a look at the Restatement (Third) of Torts, Products Liability. We find the Restatement’s position in §20 (“Definition of ‘One Who Sells or Otherwise Distributes’”):
[I]n a strong majority of jurisdictions, hospitals are held not to be sellers of products they supply in conjunction with the provision of medical care, regardless of the circumstances.
Restatement (Third) of Torts, Products Liability § 20, comment d (1998). That’s because, in most instances courts have decided that hospitals predominantly provide services, and thus do not qualify as “sellers” subject to strict product liability.
That brings us to the heart of the matter – what are that “strong majority of jurisdictions”?
So we go to the cases.
Continue Reading Hospital Strict Liability – A 50-State Survey