As we discussed earlier, in the case of the defective artificial lens implant, the fact that a product is defective, and causes injuries, does not relieve the doctor of his duty to use it carefully.
A Louisiana woman continued to have a lot of
pain after a hysterectomy. The surgeon told her it was normal and would gradually go away. After a few months with no improvement, she went to another doctor, who took an x-ray and discovered part of a surgical clamp that had broken off was still in her abdomen. Of course, she sued the manufacturer of the instrument, claiming that it broke, because it was defective. She named the hospital as a defendant, because the scrub nurse, who was responsible for handling and counting the surgical instruments during the operation, failed to tell the doctor there was a piece missing from one of them. If she had told him, he could have located the missing piece and removed it, then and there. She also sued the surgeon for medical malpractice for failure to: 1.) note the broken instrument while he was operating; 2.) heed her complaints after the operation and take an x-ray, which would have revealed the metallic foreign object in her abdomen; and 3.) remove it promptly, which would have relieved her pain.
A good example of injury from improper use of a safe remedy was a New Jersey case in which a woman was getting weekly vitamin B-12 injections from her family doctor. During one injection, the needle hit the sciatic nerve, which runs down the back of the leg, and gave her permanent “foot drop.” She could not lift her foot, and her toes dragged on the ground when she walked. The doctor claimed it was the fault of the vitamin solution, which irritated the nerve (that was true), but the court said it was also due to his improper use of the medicine. Vitamin B-12 is only good for pernicious anemia, which the patient did not have. The shots were useless. It was medical malpractice for him to have exposed her needlessly to the risk of nerve injury, just to get her money for a weekly office visit and injection.
The Rule Is: When you are injured by a product, you can sue the manufacturer, wholesaler, and retailer, including the hospital, and you have to show that your injury was of a type that could be caused by the defect. You can also sue the doctor for medical malpractice if your injury was partly due to improper use.