Hospitals’ Exposure to Products Liability Suits

By Alex Stein

The United States District Court for the District of Connecticut has recently delivered an important decision that opens up new possibilities for suing hospitals and clinics. This decision allowed a patient alleging that hospital employees injected her with a contaminated medication to sue the hospital in products liability. Gallinari v. Kloth, — F.Supp.3d —- (U.S.D.C. D.Conn. 2015), 2015 WL 7758835.

The hospital argued that the patient’s suit sounded in medical malpractice and was consequently doomed to dismissal because the patient failed to accompany it with a certificate of good faith and a written opinion from a healthcare provider regarding the evidentiary basis for the claim, as required by Conn. Gen. Stat. § 52–190a (a statutory provision aiming to “prevent the filing of frivolous medical malpractice actions” (Morgan v. Hartford Hosp., 21 A.3d 451 (Conn. 2011)). The hospital cited in this connection Connecticut precedent that required courts to look “past the labels affixed to claims to determine whether they actually sounded in medical malpractice.”

The Connecticut Supreme Court has adopted a three-prong test to determine whether a negligence or products liability suit actually sounds in medical malpractice. Courts applying this test should consider “whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.” Gold v. Greenwich Hosp. Ass’n, 811 A.2d 1266, 1270 (Conn. 2002).

In the case at bar, the plaintiff’s strict products liability claim alleged that the hospital was a “product seller” because it sold her the medication. The claim further alleged that the medication was defectively designed and also was non-merchantable and unfit for the purposes for which it was intended.

The court ruled that these allegations sounded in products liability and refused to recharacterize them as “medical malpractice.” As a result, the plaintiff managed to avoid the duty to file medical expert opinion ahead of trial.

This decision has far-reaching implications for hospitals and clinics that administer medications to patients. Any such organization is now exposed to strict products liability for injuries caused by medications it administers.

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About Alex Stein

Alex Stein is a Professor of Law at Brooklyn Law School. Before joining Brooklyn, Alex was a Professor of Law at Cardozo Law School (2004-2016) and served for more than a decade at the Hebrew University of Jerusalem Faculty of Law (1991-2004). He also held visiting professorial appointments at Alabama, Columbia, Miami, and Yale Law Schools. In Fall 2016, he visited Harvard Law School, where he taught Torts and a seminar on Medical Malpractice. Alex's specialty areas include Torts, Medical Malpractice, Evidence, as well as general legal theory and economic analysis of law. He authors three books, An Analytical Approach to Evidence (with Ronald J. Allen et al.) (6th ed. 2016); Foundations of Evidence Law (2005) and Tort Liability under Uncertainty (2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals. Alex was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice,, that covers all significant developments in medical malpractice laws across the United States. He graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.