In Groningen, a dissertation was recently written by Jantina Hiemstra on the liability of the doctor and the hospital for damages resulting from a defective product. For example, the cardiologist who, when treating the patient, uses a pacemaker used. If those pacemaker turns out to be defective and causes damage, the question arises whether the doctor and the hospital are liable for it.
Position of doctors and hospitals
Doctors and hospitals usually take the position that in that case the patient should recover his or her damages from the manufacturer of the product. This position is based on an idea expressed by the legislature in the 1980s. Case law is variable, but for the most part supports that view of the physician and hospital.
For years there have been voices calling for the doctor and hospital to be held liable in such a situation. Hiemstra's dissertation supports that position.
Main legal rule in case of defective product
The general, legal main rule is that a person who uses a product in the performance of his work is liable for the damage caused by a defect in that product. As an exception, this is different only if it would be unreasonable due to special circumstances.
Example of such liability - in accordance with the main rule - is the contractor who uses a defective item in the performance of the work. That contractor is liable for the damage caused thereby. In principle, this is not considered unreasonable.
Why should this be different for the physician or hospital? In the thesis, Hiemstra rightly, and on the basis of good arguments, states that there is no good reason for this.
Medical treatment situation
In a medical treatment situation, the choice to use a particular product in treatment is usually made by the physician or by the hospital. Unlike the patient, they are also in a position to make that choice. The doctor and hospital can be expected to make that choice carefully by them.
Of course, it cannot be avoided in all cases that - despite careful choice - the product turns out to be defective. In such a situation, therefore, the doctor and the hospital may not be at fault, but still be obliged to compensate for the damage. This is a matter of reasonable attribution. The doctor and the hospital are in a much better position (than the patient) to ensure that the producer will still ultimately bear the damage.
It is my expectation that this dissertation will change the jurisprudence in this regard in favor of the patient. There is every reason to do so.
See more information about the thesis From Jantina Hiemstra.
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