Greenwich Hospital May be "Product Seller"

A Bridgeport judge (Hiller, J.) denied Greenwich Hospital’s motion to strike a product-liability count, because a former patient might prove the hospital was in the business of selling medical products such as a helical basket that allegedly broke during surgery.

Plaintiff Mark Basso’s complaint alleged that a Bagley Helical Basket, which was manufactured by the defendant, Boston Scientific Corp., was used to remove part of his kidney stone, but the helical basket was defective and broke. Allegedly, the surgeon incised the plaintiff’s ureter. The plaintiff sued the hospital, alleging the helical basket was defective and unreasonably dangerous, and the hospital negligently and intentionally failed to preserve the remains of the helical basket.

In response, the hospital moved to strike product-liability counts on the grounds that hospitals are not “product sellers,” within the meaning of the Connecticut Product Liability Act, C.G.S. §52-572m(b). The statute provides, “A product liability claim . . . may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product.” Product sellers include “any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products where the sale is for resale or for use or consumption.” The court concluded the plaintiff might prove the hospital was in the business of selling medical products such as the helical basket, and it denied the hospital’s motion to strike. The court also denied Basso's spoliation of evidence claim, in which he alleged that his spouse asked the hospital’s director of risk management to preserve the helical basket after the operation. Allegedly, the director agreed, but the hospital lost or failed to preserve the helical basket. The plaintiff sufficiently alleged the hospital knew the plaintiff might sue, and the hospital’s agent agreed to preserve the helical basket.