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Battle Post-op Pain Without Opioids - April 2016 - Outpatient Surgery Magazine

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strict product liability and medical malpractice. The hospital chal- lenged the suit, saying that the patient's claims sounded only in med- ical malpractice, and because she did not include the correct expert support for her malpractice claim, the suit should be dismissed. However, the court ruled that while the malpractice claims could not proceed without the proper expert support, the product liability claim could continue. In it, the patient argued that the hospital, acting as a seller of the medication, sold her a defective product without revealing the information about the risks associated with it. Additionally, the court found that the hospital's pricing of the medica- tion did not involve the patient's diagnosis or treatment, further strengthening the patient's product liability claim. The case is now pending trial. How this could impact you Any facility that provides medication or medical devices to patients should pay attention to this case. When a product malfunctions during the course of medical treatment, a patient can usually sue for prod- ucts liability and medical malpractice under the law. After the suit is filed, the court determines the entity that's ultimately responsible for the injury — typically the manufacturer, designer or vendor for selling a defective product, or the provider for giving poor care to the patient. Generally, it is preferable for healthcare facilities to be sued for medical malpractice and not product liability, since malpractice suits come with strict burdens that patients often don't or can't meet, resulting in a dismissal of the suit. In this case, that happened with the malpractice claims the patient brought against the hospital; how- ever, it still got hit with the product liability claim, which comes with lower burdens for the plaintiff and potentially higher financial penal- ties for the defendant. There are a few reasons why that occurred. 4 2 • O U T PA T I E N T S U R G E R Y M A G A Z I N E • A P R I L 2 0 1 6 Medical Malpractice MM

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