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Posts Tagged ‘implied warranty’

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.

If a doctor tells you that you are sure to get a good result, or there is absolutely no chance of anything going wrong, that is

what is known as an Express Warranty and creates a contract.  You give him your money, or put up

with the suffering, inconvenience, and time lost due to the treatment, in consideration of his express warranty that he can produce a certain result.

What if the doctor does not actually make any specific promises?  What if he says, “I have given these weight-loss pills to over 500 patients, and no one has ever had a bad reaction.”  What if a plastic surgeon shows you photos of patients he has operated on, and every photo shows an attractive person, so you think, “This doctor never misses.  All his patients look wonderful, so I will, too.”  Are those warranties, even if he did not spell them out in so many words?

Yes.  This type of inducement creates what lawyers call an Implied Warranty and also creates a contract between you and the doctor.  Even though the doctor did not spell it out, his presentation to you was designed to create the impression that nothing could go wrong.  In some states, the courts will recognize an implied warranty as grounds for a lawsuit for breach of contract, but you have to be careful.  As already explained in our blog, giving a good prognosis is recognized and accepted medical practice, to reassure the patient.  The courts in most states will consider an implied warranty as just a prognosis and not a contract.

An unusual case of an implied warranty, giving rise to a successful lawsuit for breach of contract, took place in New York City.  A famous plastic surgeon, who was also a talented artist, used to give his patients sketches showing what they would look like after he operated on them.  When one patient’s nose did not turn out like the nose in the doctor’s sketch, she sued for breach of contract.  The New York court held that the sketch was an implied contract and she won.

The Rule Is: If you claim the doctor gave you a warranty, either express or implied, you have to be prepared to show that it went well beyond what could be considered as a good prognosis and misled you into submitting to treatment you would not otherwise have had.

For instance, a ruptured appendix needs to be attended to immediately.  Either it comes out right away or you could develop anything from an abdominal abscess to a fatal peritonitis.  So, it does not really matter what the doctor tells you before he operates.  On the other hand, you are not going to let a doctor do major surgery on your arthritic knee, or a rhinoplasty (nose job) on your daughter, unless you are reasonably sure  he will produce a good result.  You have time to look for a doctor, who will do the best job.  If the procedure is something unrelated to your health or well being, like a face lift, it may not matter whether you ever have it done.

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