Claim Revived Against Medical Software Developer: In its unpublished opinion dated November 29, 2022, the United States Court of Appeals for the Fourth Circuit (“Federal Appellate Court”) stated: In this product liability negligence action, Ruby L. Lowe, on behalf of her injured grandson Michael A. Taylor, filed suit against Cerner Health Services, Inc. (Cerner), the developer and seller of a software system used for entry of medical orders for patient care.
Cerner sold its software system to the Virginia Hospital Center (VHC), where Taylor was a patient. Taylor suffered brain damage and resulting physical impairments at VHC after failing to receive “continuous pulse oximetry” as intended by
his physician, who had entered an order for that care into the Cerner system used by VHC.
Lowe asserted negligence claims against Cerner under Virginia law, alleging that the Cerner software was negligently designed (the negligent design claim), and that Cerner negligently failed to warn system users of those design defects (the failure to warn claim). Lowe asserted that Cerner’s negligent acts caused the failure to properly monitor Taylor’s
oxygen level, and that proper monitoring would have prevented Taylor’s injuries.
The district court awarded summary judgment to Cerner.
The Federal Appellate Court held that the district court erred in awarding summary judgment to Cerner on both claims, stating that a jury reasonably could conclude that Cerner’s software contained two design defects that did not comply with industry standards or satisfy reasonable consumer expectations. The Federal Appellate Court further held that the district court misstated Virginia law on proximate causation, which provides that there can be more than one cause of an injury and, contrary to the district court’s holding, did not require Lowe to eliminate other causes of the injury. The Federal Appellate Court held that Lowe presented sufficient evidence for a jury to conclude that the software defects were a proximate cause of Taylor’s injuries. Lastly, the Federal Appellate Court held that the district court erred in awarding summary judgment to Cerner on Lowe’s failure to warn claim because that evidence was sufficient for a jury to conclude that Cerner failed to warn users about the software design defects and that Cerner’s failure to do so was a proximate cause of Taylor’s injuries.
A dissenting opinion stated, in part: “Ruby Lowe filed suit against Cerner Health Services on behalf of her severely injured grandson Michael Taylor. Cerner is in the business of making software that transmits medical orders. Lowe must of course prove every element of her claim. Her case runs aground on an inability to create an issue of triable fact as to proximate causation for Taylor’s injury. Causation is an element both of plaintiff’s design-defect and failure-to-warn claims. Some 32,000 pages of discovery and the designation of seven experts have produced only pretty thin gruel. A record this thick often suggests a fishing expedition, as I think it does here. I would thus affirm the judgment.”
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