Product Liability & Tort Claims: Barbara Hoffman v. Orthopedic Systems, Inc. Case Study, Exams of Law of Torts

Download Product Liability & Tort Claims: Barbara Hoffman v. Orthopedic Systems, Inc. Case Study and more Exams Law of Torts in PDF only on Docsity! 1. If BH has a husband, he would be able to file a claim against the same defendants for loss of consortium. 2. In the recitation of the facts there is also reference to a monitor alarm that went off during surgery, as well as statements that the monitor was broken. It does not appear that the monitor had anything significant to do with her injury. If it turns out that a defect in the monitor did in fact cause her injury, the analysis would be similar to the analysis of the claim against OSI. The facts for this question were based upon Hoffman v. Orthopedic Systems, Inc., 327 Ill.App.3d 1004, 765 N.E.2d 116, 262 Ill.Dec. 290 (Ill.App. 2002), in which the court affirmed the dismissal of her product liability claim because it was not brought within two years of the time her attorney was on notice of the existence of a product liability claim. TORTS II PROFESSOR DEWOLF SUMMER 2002 August 12, 2002 FINAL EXAM SAMPLE ANSWER QUESTION 1 Barbara Hoffman ("BH")1 has a product liability claim against Orthopedic Systems Inc. ("OSI"), a medical malpractice claim against Dr. Wetzel and the hospital, and possibly a legal malpractice claim against the attorney who handled her STA claim. She will have to respond to defenses based on the statute of limitations, and may have to consider the effect of the settlement with the bus company. I. Product Liability Claim2 To recover damages from OSI, BH would have to establish that the surgical table (SST- 3000) was defective. The evidence is unclear as to exactly how the accident happened, but the hospital could provide strong evidence that there was a failure of the SST-3000. There are three basic kinds of defects: manufacturing, design, and warning. a. Manufacturing Defect? It is possible that there was something wrong with this particular SST-3000, that is, for some reason it did not meet the manufacturer's specifications. For example, the steel holding the bar might have been of inferior quality, or it was not properly welded, or some other defect in the manufacturing process occurred. If that is what happened, the manufacturer is strictly liable. Unfortunately, it looks like the evidence that would support such a claim will be difficult to obtain given the length of time since the accident happened. b. Design defect? Even if the SST-3000 was properly manufactured, it may be that the design was inferior. The fact that the equipment slipped in the course of the surgery suggests something wrong with the equipment; even if part of the problem was with the operators of the equipment, the serious consequences for BH suggest that greater care should have been used in preventing such accidents. Jurisdictions vary as to the standard used to determine whether a design is defective. Some use a true negligence standard, particularly for medically related products (although medical equipment might not get the same treatment as pharmaceutical drugs). Other jurisdictions use a "strict liability" standard, which usually means that the jury judges whether the product is reasonably safe by asking whether a reasonably prudent person would have used the DeWolf, Torts II, Summer 2002, Sample Answer Page 2 design that OSI used. The primary difference is that the jury can use "20-20 hindsight" in imputing to OSI the knowledge we now have about the product, rather than using a true negligence standard of what OSI knew or should have known about the product. It doesn't seem likely that there would be any significant difference here. The risk of the bar slipping underneatn an anesthetized patient must have been well known to OSI when the product was designed. c. Warning defect? Even if the design of the product was not unreasonably dangerous, the product is still defective if it lacks warnings that allow it to be used safely. In this case the surgical team apparently was unaware that the bar had slipped underneath BH and was causing her serious injury. If a warning about this potential would have helped avoid the injury, then the SST-3000 can be found defective. On the other hand, the surgical team may have been well aware of this risk, and hence the warning would have done little good. As with the design defect issue, the difference between strict liability and negligence wouldn't be significant; the real question is whether the product's potential to cause this kind of injury was so high that a reasonable person would have avoided it through better design or more effective warning. II. Medical Malpractice Claim That naturally brings up the alternative possibility that the SST-3000 was reasonably well designed but the people who used it were incompetent. Medical malpractice cases fall into two areas: a. Failure to Meet the Standard of Care. First, the health care provider may be negligent in performing a procedure, such as diagnosis or surgery. To determine whether or not there was negligence in performing a procedure, the health care provider's performance should be compared with someone with the same level of expertise practicing in the same or similar circumstances. Thus, Dr. Wetzel would be judged by the standard of care exercised by surgeons in a similar hospital setting. It's unclear exactly what caused the problem with the SST-3000, but someone, perhaps on the hospital staff, didn't use it properly. Moreover, no one seemed to notice when the equipment had failed. It seems hard to believe that all of the hospital personnel and the surgeon were meeting the standard of care; even if there was some problem with the equipment it would seem that reasonable procedures should be in place to check on the patient's condition during the surgery to avoid this kind of catastrophe. Nonetheless, the burden will be on BH to find a competent expert witness who can testify that either the physicians or the hospital staff (whichever way the evidence points—possibly both) did not meet the standard of care. b. Failure to Secure Informed Consent. Even if the procedure were not done negligently, BH may still have a medical malpractice claim if she did not give informed consent to the procedure. Informed consent must be given after the patient has been provided with a disclosure of the risks of surgery along with alternative forms of treatment. The facts suggest that Dr. Wetzel told BH this would be "fairly simple" surgery. If he did not disclose the risk that something catastrophic could happen, he is liable for the subsequent injury even if he was not negligent in performing the procedure. III. Statute of Limitations I am troubled by the length of time since the procedure. If this jurisdiction has a two-year statute of limitations, it could bar both claims. The statute of limitations is probably subject to a "discovery rule"—the statute begins to run when the plaintiff knows or should know of the injury and its cause. On the one hand, BH didn't know the full details of the product liability case until her second surgery, but given the description of the surgery by all concerned, it would seem to put a DeWolf, Torts II, Summer 2002, Sample Answer Page 5 III. Contributory Negligence The state would certainly argue that JH was contributorily negligent in slipping and falling not once, but twice. Plaintiffs, just like defendants, are obligated to exercise reasonable care for their own safety. If a jury finds that JH wasn't using reasonable care, either in the choice of footgear, or where she was walking, or how she was walking, they would find her negligent. The Evergreen statute (§ 34-51-2-5&6) provides for "modified comparative fault"—that is, JH can recover so long as her fault is not greater than that of the state. If, for example, the jury found JH and the State equally at fault, JH would recover 50% of her damages. On the other hand, if the jury found that JH was more than 50% at fault, she would get nothing. It's possible that the state could argue that, after the first fall, when she was aware of the slippery conditions, JH assumed the risk of injury. I don't think this would work, since in most jurisdictions on these facts the defense of assumption of risk would simply be another way of describing contributory negligence IV. Statute of Limitations There is nothing in the statute about a statute of limitations, but it has been more than three years since the day of her injury. We should find out if a claim is still timely. I see no basis for extending the statute of limitations beyond what is provided in the statute. V. Collateral Source Benefits Evergreen has modified the traditional common law rule that excludes evidence of collateral source payments from consideration by the jury. Thus, if JH has received payments for her medical expenses or for wage replacement, that evidence would be admissible the trial of her case against the state. On the other hand, she can also introduce evidence of her obligation to pay that money back (which is likely). Summer 2002 Final Exam Checklist QUESTION 1 G Overview G Product Liability Claim G Was the product defective? G Manufacturing defect? G True strict liability G Is evidence still available? G G Design defect G Evidence required if test is negligence G If risk was unknown, SL would help G Product risk probably known G Design liability even if operator error G G Warning defect G If design okay, but still dangerous G Did personnel know of risk? G G Loss of consortium claim? G G G G Medical malpractice claim G Professional negligence G Standard of care—comparable position G Admission of problems G Informed consent G "simple" didn't accurately describe risk G G Statute of Limitations G SOL for claim v. OSI G Two years or three years? G Discovery rule still requires diligence G Lawyer's investigation may trigger duty G SOL for claim v. the Hospital G Was there fraudulent concealment? G When was she put on notice? G G Claim v. Attorney Walner G Bad settlement? G Delay in pursuing malpractice claims G G Multiple tortfeasor statute G Settlement reduces total recovery QUESTION 2 G Overview G Claim v. State G G Premises Liability G Public Invitee G Standard of Reasonable care G Was Sanchez' maintenance negligent? G G Sovereign Immunity G Exception for "temporary condition" G Is refreezing of snow temporary? G No discretionary function exemption G Cap of $300K G G G G Contributory negligence G Modified Comparative Fault statute G If >50%, claim is barred G Assumption of risk = CN G G Statute of Limitations G More than three years G G Admissibility of collateral source benefits G Loss of consortium claim? G G G G G G G G G Exam # ____________________