Most of us take comfort in the fact that each day that we come to work to serve our patients, we intend to perform at our very highest caliber. We hope that our stellar reputations will shield us from liability if anything unplanned should occur and injury befalls a patient. Well, strictly speaking – this just isn’t the case.
Strict liability is a theory in which fault can be determined regardless of intent or even knowledge of wrongdoing.
Strict liability can apply to crimes or torts. An example of a strict liability crime is the act of serving alcohol to minors. Strict liability in tort is generally focused on objects (not actors) that cause harm (i.e. strict products liability).
To prevail in a cause of action based on strict products liability (SPL), the plaintiff must prove: 1) the product was defective, 2) it was defective when it left the defendants hands, and 3) the defect was the proximate cause of the harm suffered. It is also necessary that the product be expected to and does reach the consumer without substantial change from it’s condition when sold. Liability will attach if a product is sold in a defective condition and the defect causes a foreseeable user of the product to suffer personal injury as a result; any party involved in the commercial supply of that product will be held strictly liable for the injury. Mandatory considerations in a SPL cause of action include: 1) proper plaintiff (any user or consumer), 2) proper defendant (any entity in the marketing chain, not occasional or used dealers), 3) proper context (personal or property harm not harm to the product), 4) defect type (manufacturing, design, or warning), 5) cause in fact (“but for” the defect the plaintiff would not have been injured), 6) proximate cause (the harm was reasonably foreseeable from the defect; no superceding conduct present – like misuse or alteration of the product), and 7) actual harm. A product is considered “defective” if based on it’s design, manufacturing, or lack of adequate warning it constitutes a danger to the average consumer that is greater than the social utility of the product.
So you may be thinking, you are safe from this type of liability because you NEVER intend to harm any of your patients or use any defective equipment. But what if a patient has an injury after surgery that they did not have before surgery, and the injury is such that they could not have contributed to its occurrence and last, but not least, the injury stems from a modality that was under your (the anesthesia provider) exclusive control……Res Ipsa Loquitur – The thing speaks for itself.
Pamela Chambers, MSN, EJD
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