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Archive for December, 2011

In tort law, the stream of commerce theory refers to a principle that a person or entity that participates in placing a defective product in the general marketplace is strictly liable for harm caused by the product.

A Mississippi woman was give

n a vitamin shot in a doctor’s office and developed a severe infection with permanent scarring at the site of the injection. She claimed the injection had been contaminated and sued both the doctor and the manufacturer of the vitamin solution. The manufacturer said that nobody had tested the vial to show the vitamin solution was actually contaminated. However, the court said the injury was of the type

caused by a contaminated injection. The manufacturer was held liable under strict liability.

In a Texas case, a vial of medicine to be used in an eye operation was sterilized by placing it in a pan of strong formaldehyde solution. When the drug was drawn out of the vial and into a syringe, it was contaminated with the formaldehyde and caused serious eye damage. The patient sued the hospital and won. The court said that the hospital had made an implied warranty that the drug was fit for use in the eye. When it injured the patient, the hospital was liable. The woman could also have sued the manufacturer.

In a Nebraska case, a woman fell and fractured her hip. The doctors put in a prosthesis (artificial hip joint) that broke because of a manufacturing defect and had to be replaced. During the second operation, the patient died of a pulmonary embolism (blood clot to the lung). Since the second surgery would not have been necessary, if the prosthesis had not been defective, the family sued the manufacturer. They also sued the hospital as the retailer, because it had charged her insurance company for the prosthesis. Some surgeons buy their own surgical implants. If that had happened in this case, the doctor could have been held liable as the retailer. However, since he had not, and the patient’s death was not due to medical malpractice, the doctor was not sued.

There is an important exception to the stream of commerce theory. If a piece of equipment has been changed or modified in any way, after it was bought, that may cut off the liability of the manufacturer and everybody else “upstream”, who are only responsible for the device as it was sold. The people who altered it would be the only ones liable, especially if the alterations or repairs played any part in the injury. If the wheelchair’s brakes in the Wisconsin case we discussed earlier had failed because a hospital repairman had worked on them, the hospital would have been liable for the faulty repairs, and the manufacturer would have been cleared.

In some defective product cases, you can also sue the doctor for malpractice, if he had anything to do with it. An eye specialist in Illinois was implanting an artificial lens after removing a cataract. When he got the cataract ou

t of the patient’s eye, he found that the implant he planned to use was defective and could not be inserted. Since the hospital did not have a replacement available, he could not finish the operation. He had to sew up the eye without the implant and do a second operation, which went wrong and

resulted in permanent loss of vision. The court held that the manufacturer and the hospital were liable to the patient, for selling a defective product to the hospital, even though they never had anything to do with the patient.

Could the patient also sue the doctor? Yes. There is always the chance that a surgical implant will be found to be defective, damaged in handling, or accidentally contaminated, so it cannot be used. A patient obviously cannot be kept on the operating table under anesthesia, while the factory ships a replacement. So, the surgeon and the hospital have a duty to be sure that a sterile back-up is available in the operative room in case anything happens. But, that is malpractice, which is different from the strict liability we are discussing. The patient would have to show they were both guilty of negligence and failed to anticipate the mishap, which would not be too difficult.

What if you do not find out you were injured by some machine or device until a long time later, when the product that injured you has been thrown away and can no longer be examined for flaws? What if the defective wheelchair, the contaminated injection vial, or the short-circuited heating pad have been thrown away by the time your lawyer asks to have them examined? How can you prove you were injured?

The Rule Is: It does not matter. All you have to do is show your injury was of the type that could have been caused by such a defective product. Then the defense has to prove that it was not. You do not have to produce the actual item that harmed you, especially if you can show that it is no longer available.

     
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