Hospital May Be Liable For Defective Drug: In its December 14, 2022 Opinion, the Oregon Court of Appeals (“Oregon Appellate Court”) held that a hospital that charges for a pharmaceutical drug administered to a patient in its emergency department is a “seller *** engaged in the business of selling” the drug subject to strict product liability under ORS 30.920.
Plaintiffs Thomas Brown and Maria Del Carmen Espindola Gomez, individually and as guardians ad litem for their minor child, M, brought a strict product liability claim against defendant Providence Health System – Oregon alleging that the pharmaceutical drug Zofran, which Providence emergency medical staff prescribed and administered to Gomez while she was pregnant, caused M to be born with irreparable heart defects.
The Oregon Appellate Court held: “Based on the text, context, and legislative history of ORS 30.920, we conclude that a “seller” of a product is one who transfers ownership of the product to another in exchange for valuable consideration. We further conclude that a seller is “engaged in the business of selling” a product when selling the product comprises some part of the seller’s ongoing commercial activity … one can be a “seller * * * engaged in the business of selling” a product subject to strict liability under ORS 30.920 even if the seller also or primarily provides a service and the sale of the product is incidental to that service.”
ORS 30.920
ORS 30.920 defines a “product liability civil action” as:
“[A] civil action brought against a manufacturer, distributor, seller or lessor of a product for damages for personal injury, death or property damage arising out of:
“(1) Any design, inspection, testing, manufacturing or other defect in a product;
“(2) Any failure to warn regarding a product; or
“(3) Any failure to properly instruct in the use of a product.”
A “product liability civil action” defined in ORS 30.900 “embraces all theories a plaintiff can claim in an action based on a product defect,” including negligence and strict liability claims.
The Oregon Appellate Court stated: “The ordinary meaning of a “seller * * * engaged in the business of selling” a product, in accordance with section 402A, comment f, is one who carries on commercial activity composed in some part of transferring ownership of the product to another in exchange for valuable consideration. Although the seller must sell the product in the usual course of business, the seller need not solely or primarily engage in the business of selling the product. And comment f strongly suggests that strict liability applies to the sale of products that are incidental to a service transaction and to products that are consumed on site.”
“[I]n addition to the express exceptions that exist within the product liability statutory framework, the legislature may also express the intent to exclude certain products or sellers from strict liability by declaring that transactions in such products do not constitute sales, as it did in former ORS 97.300. None of the statutes Providence cites affirmatively exclude hospitals or pharmacies from sales transactions, and Providence has cited no legislative history that evinces an intent to so exclude them.”
The Oregon Appellate Court held: “the ordinary meaning of a “seller * * * engaged in the business of selling” a product, in accordance with section 402A, comment f, is one who transfers ownership of the product to another in exchange for valuable consideration and whose ongoing commercial activity consists in some part of selling the product. One can be a “seller * * * engaged in the business of selling” a product subject to strict liability under ORS 30.920 even if the seller also or primarily provides a service, the sale of the product is incidental to that service, and the product is immediately consumed on site. The relevant context and legislative history confirm that interpretation.”
Source Brown v. GlaxoSmithKline, LLC, A169544.
If you or a loved one suffered injuries (or worse) as a result of a bad drug/defective drug in Oregon or in anther U.S. state, you should promptly seek the legal advice of an Oregon medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your drug claim for you and represent you in a claim against a pharmaceutical company or other liable party, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to find drug claim lawyers in your state who may assist you.
Turn to us when you don’t know where to turn.