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

compilation of legal principles. It is not a statute and does not have legal force unless
adopted by a state’s courts or legislature.)
Sec. 402A. Special Liability of Seller of Product for Physical Harm to User or
Consumer
(1) One who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to liability for physical
harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his
product, and
(b) the user or consumer has not bought the product from or entered into any
contractual relation with the seller.
It is section 1 that creates the strict liability. It allows the injured person to recover if
the product was defective and unreasonably dangerous but does not require that the
defect be caused by negligence of the defendant. Some states also reduce the plaintiff’s
burden of proving causation in products cases. For example, assume the respirator hose
connector breaks on a patient dependent upon the respirator. An ICU nurse notices that
the patient has suddenly developed an arrhythmia but does not check the patient for 20
minutes. When the nurse finally checks the patient, the broken connector is found, and
so is a severely hypoxic patient.
The nurse was clearly negligent in not checking on the patient. This is the proximate
cause of the injury and would support an independent negligence action against the
nurse and his or her employer. While the respirator connector was defective, the injury
would not have occurred if the nurse had attended to the patient properly. In a pure
negligence case, the product manufacturer might successfully argue that the nurse’s
intervening negligence cut off its liability. This is a strong argument in the ICU
because part of the nurse’s job is to be alert to failing equipment. In most states,
however, the device manufacturer will be held strictly liable for the injury, irrespective
of the nurse’s negligence. Both the connector manufacturer and the nurse (hospital)
would be liable for the injury.
Physicians are often drawn into products liability litigation. The plaintiff sues the
physician in hopes of a potential second recovery or help in pinning the liability on the
product manufacturer. The manufacturer may force the physician to be joined as a
codefendant by alleging that the injury was caused by misuse of the device rather than
by a defect. This is common when the alleged defect is in design, not manufacture.
One series of cases involved an anesthesia machine whose connectors could be
reversed, with fatal consequences. The manufacturer alleged that the machine was
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