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The recent observations of the court in the Brown v. GlaxoSmithKline LLC and Providence Health System cases have altered the perception of liability of hospitals selling pharmaceutical drugs. Hospitals selling these drugs are now subject to strict liability for alleged drug defects under Oregon law, as stated by the Oregon Court of Appeals in the case cited above.

This decision is directly in contravention with the majority consensus of courts across the US, which are of the opinion that hospitals are not strictly liable for any defective drugs or devices that are used during the course of treatment and medical care of patients.

Most of these courts are of the opinion that hospitals are not liable for these defects because their primary business is not selling drugs or medical equipment, rather it is to provide the best possible treatment and care to their patients. Similar reasoning is applicable to physicians and retail pharmacies, too. This also explains why in most cases of liability arising due to defective drugs or devices, the defendants named are never healthcare providers. The healthcare providers are included as defendants only when there is a case of actual medical negligence caused by them.

In the above-cited Brown case, the plaintiff, a pregnant lady was prescribed and administered Zofran (a drug) while she was in the emergency room. According to the plaintiff, the administration of Zofran caused heart defects in her unborn child, for which she not only held her claim against the drug manufacturer of Zofran but the hospital staff, too. The latter claim was unusual on her account, as precedents have never held healthcare staff accountable for any side effects caused due to the administration of drugs.

After analyzing the facts of the case, the trial court gave out a similar judgment that did not hold the seller of the drug (the hospital) liable. However, the Oregon Court of Appeals reversed this judgment with the reasoning that “a seller is ‘engaged in the business of selling’ a product when selling the product comprises some part of the seller’s ongoing commercial activity . . . [and] one can be a ‘seller engaged in the business of selling’ a product subject to strict liability under ORS 30.920 even if the seller also or primarily provides a service and the sale of the product is incidental to that service.”

Albany wrongful death attorneys state that the Brown ruling, is no doubt, significant and alters the way the liability of drug sellers has been perceived for decades. But the question of whether the judgment should be applied for every such case arising still stays. Shifting the liability on drug sellers will alter the entire dynamic between manufacturers of these drugs and their distributors. It would also require manufacturers, distributors, and healthcare providers to alter their contracts, to adequately address on whose shoulders the liability would fall, in case liability claims arise in the future.

It is to be noted that the Brown judgment is one of its kind. Oregon statutory provisions expressly exclude certain sellers and products from the purview of strict liability. From this, the court concluded that the legislature never wastes its words and if it wanted to, it would have clearly excluded hospitals and pharmacies from strict liability arising from defective drugs or devices. The judgment has generated a buzz in the market, and healthcare providers are concerned, as they could now be held liable for any claims under drug and device litigation as well.

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