Whose liability is it anyway?

December 1, 2006

Perhaps the patients will all sue the laser company and not Dr. Laser. After all they sent a "beginner" laser representative to guide the "beginner" physician.

Although he recognizes that there is a plethora of available laser and light based devices, he is confident that his training will guide him in his purchase and use of a laser. In addition to his dermatology residency, Dr. Laser has also actively attended a variety of laser courses at both the American Academy of Dermatology and American Society for Dermatologic Surgery annual meetings.

Setting the stage

The purchase price of the device includes the availability of a company representative to train his staff on the use of the machine and to be by his side as he treats his first several patients.

When Dr. Laser finally treats his first scheduled patients, the laser representative suggests the "appropriate" treatment parameters. The laser representative appears to be knowledgeable, but also admits to Dr. Laser that this is his first opportunity to advise a physician on the use of the laser. Dr. Laser had hoped to have a more experienced person by his side. He is also amazed at how poorly prepared he feels for everyday laser treatments despite his extensive training.

Blind leading the blind

Unfortunately, the laser representative misguided Dr. Laser and all of the initially treated patients are permanently scarred.

Now, soon after going into practice, he is faced with the possibility of a lawsuit from multiple patients. He is demoralized and is concerned about losing both the cases and his medical malpractice coverage so early in is career. Thankfully, a good friend of Dr. Laser has just graduated from law school. This newly graduated attorney advises Dr. Laser to be up front with the scarred patients and tell them what happened. Perhaps the patients will all sue the laser company and not Dr. Laser. After all they sent a "beginner" laser representative to guide the "beginner" physician.

Ultimately, all of the scarred patients sue both the laser company and Dr. Laser. As is typical, the case goes on for a significant period of time. Diverse multiple expert opinions are expressed and Dr. Laser loses sleep. His only comfort comes from the hope that he will not be found culpable because, as he rationalizes, this all happened due to the poor advice he received from the laser company representative.

Two years after the lawsuit is filed, Dr. Laser finds out that the laser company has submitted to the court a motion for summary judgment to drop them from the case.

Learned intermediary doctrine

The basis of this motion is that Dr. Laser was solely responsible for the laser induced scars by way of the "learned intermediary doctrine."

Dr. Laser has no idea what such a doctrine means, but assumes that the company will not be absolved of culpability. After all, it is because of the poor advice he was given that his patients were scarred.

Six months later Dr. Laser finds out that the motion for summary judgment has been granted to the laser company. The lawsuit against the laser company has been dropped. Because of the learned intermediary doctrine, Dr. Laser remains the only defendant.

What is the learned intermediary doctrine?

The learned intermediary doctrine stipulates that in most cases where a company sells a device (in this case a laser) to a physician and markets that device to the physician (and not directly to the consumer market), the physician as the learned, educated, trained individual is responsible for the use of that device.

Divvying up liability

It is unfortunate that Dr. Laser depended solely on the advice of the laser representative.

In the end, he must make the ultimate decisions regarding the choice of treatment parameters. If the machine has not malfunctioned and the complications occurred solely because of the chosen treatment parameters, the general rule is that the physician, by way of the learned intermediary doctrine, will have liability.

Dr. Laser will be solely responsible for defending himself in his multiple lawsuits.