Issue # 3:12, December 2015

Hospitals’ Exposure to Products Liability Suits

Gallinari v. Kloth, — F.Supp.3d — (U.S.D.C. D.Conn. 2015), 2015 WL 7758835

The United States District Court for the District of Connecticut has recently delivered an important decision that opens up new possibilities for suing hospitals and clinics. This decision allowed a patient alleging that hospital employees injected her with a contaminated medication to sue the hospital in products liability. Gallinari v. Kloth, — F.Supp.3d — (U.S.D.C. D.Conn. 2015), 2015 WL 7758835.

The hospital argued that the patient’s suit sounded in medical malpractice and was consequently doomed to dismissal because the patient failed to accompany it with a certificate of good faith and a written opinion from a healthcare provider regarding the evidentiary basis for the claim, as required by Conn. Gen. Stat. § 52–190a (a statutory provision aiming to “prevent the filing of frivolous medical malpractice actions” (Morgan v. Hartford Hosp., 21 A.3d 451 (Conn. 2011)). The hospital cited in this connection Connecticut precedent that required courts to look “past the labels affixed to claims to determine whether they actually sounded in medical malpractice.”

The Connecticut Supreme Court has adopted a three-prong test to determine whether a negligence or products liability suit actually sounds in medical malpractice. Courts applying this test should consider “whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.” Gold v. Greenwich Hosp. Ass’n, 811 A.2d 1266, 1270 (Conn. 2002).

In the case at bar, the plaintiff’s strict products liability claim alleged that the hospital was a “product seller” because it sold her the medication. The claim further alleged that the medication was defectively designed and also was non-merchantable and unfit for the purposes for which it was intended.

The court ruled that these allegations sounded in products liability and refused to recharacterize them as “medical malpractice.” As a result, the plaintiff managed to avoid the duty to file medical expert opinion ahead of trial.

This decision has far-reaching implications for hospitals and clinics that administer medications to patients. Any such organization is now exposed to strict products liability for injuries caused by medications it administers.

Medical Malpractice and Immunity of an Expert Witness

Harrison v. Roitman, 362 P.3d 1138 (Nev. 2015)

Tort plaintiffs tend to avoid casting their suits as “medical malpractice” whenever they can do so: for explanations see here.

Sometimes, however, they are motivated to do the exact opposite.

In Harrison v. Roitman, 362 P.3d 1138 (Nev. 2015), the plaintiff filed a suit against a psychiatrist who testified in her divorce proceeding as her husband’s expert witness. According to the plaintiff, the psychiatrist prepared and submitted to the court a written report diagnosing her with a personality disorder without ever examining her. The plaintiff portrayed this misdeed as “medical malpractice” because she could not sue the psychiatrist for infliction of emotional distress and defamation. Witnesses can only be criminally prosecuted for perjury. Otherwise, they enjoy a comprehensive immunity against suit and cannot be sued in torts for what they say in court.

The Nevada Supreme Court ruled in favor of the physiatrist. The Court reasoned that the immunity given to testifying witnesses is absolute and covers every statement made in the course of judicial proceedings. Casting a suit against a medical expert witness as “medical malpractice” does not make this immunity disappear.

Podiatrist disqualified from being an expert witness for not being a “physician”

Hastie v. Alpine Orthopedics & Sports Medicine, — P.3d — (Mont. 2015), 2015 WL 9306015

This decision of the Montana Supreme Court disqualified a podiatrist with no M.D. degree from being an expert witness in a malpractice action against orthopedic surgeons.

This decision is absolutely correct.