Products Liability: Hospitals' Exemption-McKenna V. Harrison Memorial Hospital

Article excerpt

Products Liability: Hospitals' Exemption-McKenna v. Harrison Memorial Hospital1-The Court of Appeals of Washington held that Harrison Memorial Hospital (HMH), which supplied a screw and rod device that was implanted in a patient's spine, was a provider of professional services that was exempt from liability under the Washington Product Liability Act (WPLA),2 rather than a product seller that was subject to the WPLA.3 Although the statute does not define a "provider of professional services," the court of appeals reasoned that, because the hospital acts only through its staff members, it follows that the hospital is acting within the particular staff person's professional practice when health care is provided to a patient.4 Additionally, the court reasoned that the relationship between a hospital and a patient is relevant in determining whether a hospital is principally a provider of professional services or a seller of goods.5 The decision reaffirms that hospitals are exempt from liability for a broken device under the WPLA.6

The plaintiff, Patricia McKenna, underwent surgery at HMH. The treating physician performed the surgery, inserting a screw and rod device into her spine.7 The physician was an independent contractor and not an employee of HMH.8 However, HMH provided the device, other medical supplies, the facilities and the nursing staff for the physician to perform the surgery. Several months later, x-rays revealed that two of the device's screws had broken, requiring surgery to remove the device. McKenna sued the physician and HMH, alleging a products liability claim under the WPLA against HMH. The trial court granted summary judgment for HMH, ruling that, as a provider of professional services, HMH was exempt from liability.9 McKenna appealed the district court's grant of summary judgment on the products liability claim.10

The Court of Appeals of Washington affirmed the district court's conclusion that HMH was exempt from liability because it was a provider of professional services and not a product seller as defined under the WPLA.11 Under the Washington Revised Code sec7.72.040, a product seller is liable to a claimant for harm proximately caused by its negligence.12 The WPLA defines a product seller as any person or entity that is "engaged in the business of selling products."13 Specifically excluded from the definition of product seller is "a provider of professional services who utilizes or sells products within the legally authorized scope of the professional practice of the provider. …