QUESTION:
My mother has been prescribed meds which seem to be doing a lot of damage to her: osteoporosis, a broken hip, cataracts, swollen legs, etc. The drug is Prednisone, and the doctor has her on it for 3 years. Her health has declined and she is almost housebound.
ANSWER:
Doctors, dentists, and other medical professionals, although they may use a drug or medical device that causes injury, are not in the business of selling or dispensing products. The “essence” of their activity is the provision of services. Therefore, medical professionals are not strictly liable for injuries caused by their use of a defective product (instrumentality or drug) during the course of a medical procedure or treatment, although they may incur negligence liability [Hector v. Cedars–Sinai Med. Ctr. (1986) 180 CA3d 493]. In the case of Carmichael v. Reitz (1971) it was held that “doctor not strictly liable for prescription drug’s harmful side-effects”. Moreover, the manufacturer cannot be held liable if it has provided appropriate warnings and the doctor fails in his duty to transmit these warnings to the patient or if the patient relies on inaccurate information from others regarding side effects of the drug.” [Brown v. Super.Ct. (Abbott Laboratories) (1988) 44 C3d 1049, 1061–1062, 245 CR 412, 419].
The appropriate standard of care required of a medical professional is not a matter of common lay knowledge. Therefore, except in cases of “egregious” medical negligence, expert medical testimony is required in medical malpractice actions to establish the standard of care required of a physician (or other health care provider) under the circumstances. [See Flowers v. Torrance Mem. Hosp. Med. Ctr. (1994) 8 C4th 992, 1001, 35 CR2d 685, 690. It is best to consult a lawyer in order to assist you in filing a personal injury claim.
