Public Health Law Map - Beta 5 - Medical and Public Health Law Site

A very important part of the investigation is preserving physical evidence. If the
patient was injured by a defect in a piece of equipment, the proper party to sue may
be the equipment manufacturer. The risk manager must be very careful to
determine if the injury resulted from the design or construction of equipment rather
than from an error by the hospital staff. Defective equipment can range from a
multimillion- dollar X-ray therapy machine to a surgical needle. The entire hospital
staff, both nursing and medical, should be carefully informed about the product
liability issues in medical lawsuits. An extremely important part of any incident
investigation is the recognition of risks that parties other than the medical care
providers are legally responsible for.
The modern hospital acts as both a nursing service and a medical supply house.
The hospital supplies drugs, surgical equipment, diagnostic equipment, toilet
tissue, and an enormous list of other items. In most cases, the hospital passes these
items along to the patient without altering them from their manufactured state.
There is not even much presterilization since the advent of disposable medical
supplies. If an item that the hospital dispenses injures a patient, the hospital wants
the patient to sue the manufacturer of that item rather than the hospital. If the
patient does sue the hospital, the hospital should then sue the manufacturer for
whatever damages the lawsuit causes the hospital to suffer. The investigator must
ensure that the identity of the item that injured the patient is determined, and that
the item is preserved for future testing and investigation. This should be part of the
incident reporting process. The staff must be encouraged to save the defective item
and any packaging material that has not been destroyed. These items should be
sealed in clear plastic bags and carefully labeled as to the patient and the incident.
The risk manager should immediately determine who the manufacturer is and
check the remaining stock of the item for defects. The remaining units should be
impounded and the manufacturer asked to replace them. It is very important not to
allow a second patient to be injured by the same item. The first injury may be the
manufacturer’s fault, but the second injury will be the hospital’s fault.
An incident involving a defective product should be brought to the attention of the
hospital’s counsel. While it may be possible to prevent the discovery of
information about the defective product, such prevention is not desirable. The
attorney may need to institute legal action against the product’s manufacturer to
protect the hospital’s interests. The attorney may also want to cooperate with the
patient’s attorney. If the patient’s attorney can sue the manufacturer of a defective
product, that attorney will be more likely to settle with the hospital. This occurs
because it is much simpler (and more lucrative) to litigate a defective product claim
than a medical malpractice claim. To take advantage of this, the hospital must be
prepared to share information with the patient’s attorney. To make these types of
action more effective, the quality control program must be coordinated with the
hospital’s purchasing program. The purchasing agent should know the
manufacturer and distributor for each item that is purchased. The hospital must
avoid purchasing items that have an unclear origin or are manufactured by a
company against which it would be difficult to obtain a judgment. This may not be
important for items such as tissue paper, but for items with great potential for harm,
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