Malpractice or Products Liability? The Distinction Can Be Important

We’ve written in the past about the importance of understanding what kind of cases are medical malpractice, and what kind are general negligence or products liability. A recent case has again discussed the difference, this time in a products liability context.

Why The Difference Matters

The difference is important because of the mandatory medical malpractice pre-suit requirements. Florida law puts significant requirements on a plaintiff suing for medical malpractice that aren’t required for ordinary negligence or products liability.

In many cases it’s clear that the liability is based on malpractice. But often, the question is much more vague. And when an attorney assumes that a case involves ordinary negligence or products liability, and ends up being wrong about that, an injured victim could forever lose the ability to recover for injuries.

Recent Case Discusses The Difference

In a recently decided case, Holmes Regional Medical Center, Inc. v. Dumigan, the victim entered the hospital for cardiac bypass surgery, but left a double amputee. The problem was eventually discovered to be the heparin, a blood thinner administered during the procedure. The heparin supplier had previously issued a recall of the supply due to contamination.

The contaminated heparin was still in stock at the hospital, having never been removed after the recall. The victim sued the hospital, alleging negligence in failing to discard the heparin when the recall was issued.

The question for the appellate court was whether the case was one based on medical malpractice, or products liability (specifically, based on the defective heparin).

Many courts have held that if the injury occurred during the course of a medical procedure, it’s a medical malpractice, no matter how the injury was caused. The standard is whether the injury “directly related to the improper application of medical services … and the use of professional judgment or skill.”

But in cases where the injury is unrelated to the treatment, it will be ordinary negligence. Examples are improper touching by a physician, or spilling of hot liquids on a patient.

Court Holds The Case Was Not a Malpractice Issue

Yet, the court noted that whether using a tainted product or drug constitutes malpractice was a much more difficult question. The court looked to cases decided around the country in coming to its conclusion.

In this case, the court found that the case was not a medical malpractice case. The negligence—failing to discard the heparin when it was recalled—occurred long before the procedure. No medical judgment was involved in keeping or discarding the recalled heparin.

The failure, which involved negligence, was not a medical one, but an administrative one. Even a drug store could be liable for the same error.

Thus, the case was properly a products liability one, and not a medical malpractice case.

Remember that whether the case involved medical malpractice, products liability or ordinary negligence, an injured victim is still entitled to recover for injuries. The only distinction is whether the malpractice pre-suit requirements must be complied with (as well as, in many cases, whether the shorter two-year statute of limitations in malpractice cases applies).

Suing under the correct cause of action is an essential step in an injury lawsuit. Make sure you have attorneys that understand the subtle differences and requirements of every action. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.


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