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From Products Liability Law Daily, December 2, 2015

Med-mal lawsuit prerequisites no bar to strict liability, implied warranty claims against health care providers

By Pamela C. Maloney, J.D.

A patient’s failure to submit with her complaint a certificate of good faith and a written opinion from a health care provider regarding the evidentiary basis for her claims against the health care providers who allegedly injected her with contaminated medication was not fatal to strict product liability, breach of implied warranty, and unfair trade practices claims, the federal court in Connecticut ruled, although her negligence claims could not survive absent those documents. Those claims that were allowed to proceed did not sound in negligence and, thus, were not subject to Connecticut’s statutory scheme governing medical malpractice claims (Gallinari v. Kloth, December 1, 2015, Bolden, V.).

Background. A patient filed a lawsuit against various health care providers, including a doctor, a hospital, and several medical centers, alleging that a compounded preservative-free betamethasone (the “Compounded Medication”), which was contaminated, had been injected into her spine. The complaint included counts for (a) battery; (2) violations of the Connecticut Products Liability Act (CPLA); (3) violation of the Connecticut Unfair Trade Practices Act (CUTPA); and (iv) punitive damages. The health care providers moved to dismiss all counts, arguing that despite the labels affixed to the four counts, they all sounded in medical malpractice and therefore, that the patient’s failure to include with her complaint a certificate of good faith and a written opinion from a health care provider regarding the evidentiary basis for her claim, as required by Conn. Gen. Stat. §52-190a, required dismissal of all claims.

Application of medical malpractice statute. The court agreed that the patient’s claims for negligence under the CPLA actually sounded in medical malpractice. The claims, which alleged that the health care providers negligently sold the Compounded Medication in breach of their duty to suspend the sale of the Compounded Medication when they discovered it to be dangerous and that they negligently administered the medication without informing the patient of the risk of the drug, satisfied Connecticut’s three-prong test for determining whether a negligence claim actually sounded in medical malpractice. Specifically, the defendants were sued in their capacities as medical professionals and health care providers; the defendant’s actions related to the patient’s medical treatment and were of a specialized medical nature that arouse out of the medical professional-patient relationship; and the alleged negligence was substantially related to medical treatment and involved the exercise of medical judgment. As such, the patient was required to submit the certificate and the written opinion in order to proceed on these claims.

However, the patient’s strict liability and implied warranty claims under the CPLA as well as her CUTPA claims contained unique allegations that were not derivative of her allegations of negligence. Her strict product liability and breach of implied warranty claims alleged that the health care providers were product sellers and that the Compounded Medication was defectively designed, was defective when it reached the patient and was not merchantable or fit for its intended use. Her CUTPA claim alleged that health care providers artificially inflated the price of the Compounded Medication by concealing information about the risks associated with the medication. The pricing of the Compounded Medication did not involve the patient’s diagnosis or treatment, and did not involve conduct of a specialized medical nature.

Health care providers as sellers. Having determined that the patient’s strict products liability and implied warranty claims were not barred by the patient’s failure to comply with the prerequisites set forth in the medical malpractice statute, the court next rejected the health care providers’ argument that they were not sellers under the CPLA. Acknowledging that no Connecticut appellate court has held that, as a matter of law, hospitals and health care providers are not product sellers under the CPLA, the court also pointed out that Connecticut courts have declined to dismiss CPLA claims against health care providers so long as the patient properly alleged the elements of a products liability claim. In this case, the patient met the requirements for stating a claim for strict products liability and, thus, those claims could proceed.

Implied warranty and CUTPA claims. Similarly, the patient also stated a plausible claim for breach of the implied warranty of fitness for a particular purpose and thus, that claim survived the health care providers’ motion to dismiss. However, she failed to allege that she notified the health care providers of a breach of the implied warranty of merchantability and, thus, that claim was dismissed.

With regard to the patient’s CUTPA claim, the court first determined that it was not pre-empted by the CPLA because it sought redress for a financial injury, i.e., the difference between the price she paid for the medication and “the cost of any of the substantially cheaper, and safer, drug alternatives, not for personal injuries, death or property damage. The court further ruled that the patient’s allegations that the health care providers violated CUTPA by misrepresenting and concealing material facts about the Compound Medication in order to artificially inflate its price gave rise to a plausible inference that the health care providers had engaged in an unfair or deceptive act or practice in the conduct of trade or commerce which offended public policy and/or was immoral, unethical, oppressive, or unscrupulous. Thus, the patient’s CUTPA claims survived the health care providers’ motion to dismiss.

The case is No. 3:15-cv-00872 (VAB).

Attorneys: Neal Lewis Moskow (Ury & Moskow) for Susan Gallinari. Richard A. O'Connor (Sachner & O'Connor) for David S. Kloth.

Companies: Connecticut Pain Care, P.C.; Danbury Hospital; Ridgefield Surgical Center LLC

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