Patsy Grabowski’s personal injury action is a clear illustration that, even when misconduct and injury clearly occur, proceeding through the legal process can be filled with complications, often related to selecting the proper person or entity to sue. The woman and her attorneys had to go all the way to the Louisiana Court of Appeal to revive her case relating to harm she suffered from a knee replacement gone wrong.
In 2007, Grabowski went to West Calcasieu Hospital outside Lake Charles for a total knee replacement. After later developing problems, Grabowski returned to the hospital. She underwent a second surgery, after which her surgeon informed her that the artificial knee had malfunctioned because the manufacturer’s sales representative, who was present in the operating room during the first surgery, had given him the wrong-sized part. As a result, Grabowski had suffered damage to a tendon in her knee.
Grabowski and her husband sued the manufacturer of the artificial knee, Smith & Nephew, Inc., and the sales representative who gave the surgeon the incorrect part, Daniel Forrest. The patient later discovered later that the sales rep was contracted not with the manufacturer but the device’s distributor, PUREPLAY Orthopaedic Sales 1, Ltd., so the Grabowskis added PUREPLAY to their lawsuit.
The manufacturer, the distributor, and the sales rep all moved to throw out the case. The trial court ruled in favor of the manufacturer because the sales rep was not its employee when he gave the surgeon the wrong part. The court also ruled in favor of the distributor because Forrest was an independent contractor, and not an employee of the distributor, meaning that PUREPLAY was not liable for negligent acts performed by Forrest. The court additionally ruled for Forrest, concluding that the hospital’s medical staff, not the sales rep, had the duty to make sure that the part going into the patient was the correct one.
The appeals court disagreed and reversed the summary judgment awards. Contrary to the trial court’s ruling, Forrest did owe a duty of care to the patient. He was obligated to act as a reasonable sales representative would act in that circumstance. Given that Grabowski had testimony from the doctor and a hospital administrator stating that reasonable medical device sales reps attended surgeries and provided surgeons with the correct-sized parts, the patient had laid out a potential case of negligence on the part of Forrest.
The appeals court also reversed the judgment for the distributor. The patient had offered several pieces of evidence indicating that the distributor held such tight reins over its sales reps that they were actually employees, not independent contractors, regardless of what their contracts said. The manufacturer did not escape, either. The appeals court noted that Forrest’s business cards identified him as being with Smith & Nephew, not PUREPLAY, and that the sales rep’s affiliation with the distributor and lack of affiliation with the manufacturer were unknown to many who dealt with him. As a result, the patient had made out a potential case where Forrest had the apparent authority to act on the manufacturer’s behalf, meaning that it was potentially liable as well.
Medical injury cases, especially those involving medical devices, can be highly complicated with lots of moving parts, including hospitals, doctors, device manufacturers, distributors, and others. If you’ve been injured in a medical device procedure, obtaining fair compensation can hinge on whom you decide to sue. You should make sure you have a knowledgeable Louisiana attorney to assist you with your case. Talk to the Louisiana medical malpractice attorneys at the Cardone Law Firm right away, so that our attorneys can put their skills and experience to work for you.
For your confidential consultation, contact us online or phone Cardone at 1-888-89-CARDONE (1-888-892-2736).
More Blog Posts:
Appeals Court Upholds Jury Verdict Finding Doctor Did Not Commit ‘Inexcusable’ Delay, Louisiana Injury Lawyers Blog, Sept. 12, 2014
The Anatomy of a Trip and Fall Case, Louisiana Injury Lawyers Blog, Sept. 12, 2014