SW Legal Educational Publishing

Hospital Is Not a Seller of Goods; It Is a Service Provider
Description New Hampshire high court upheld dismissal of a strict liability suit filed by a patient against a hospital for the damage he suffered from a defective prosthetic knee that was implanted in him during surgery at the hospital. Provision of the knee was incidental to the main purpose of the hospital, which is provision of health service.
Topic Torts
Key Words Products Liability; Strict Liability; Seller of Goods
C A S E   S U M M A R Y
Facts Royer underwent total knee replacement surgery at CMC hospital. The prosthetic knee, provided by CMC, turned out to be defective and had to be replaced by another surgery two years later. Royer sued the maker of the knee, Dow Corning, but it was in bankruptcy proceedings, so Royer sued CMC in strict liability. CMC was granted dismissal by the trial court that found, as a matter of law, that CMC was not engaged in the business of selling prosthetic devices. Royer appealed.
Decision Affirmed. Under the Restatement of Torts, 402(A), if the defendant merely provides a service there is no liability absent proof of a violation of a legal duty. New Hampshire joins with most other courts that have addressed similar cases and finds that a health care provider that supplies a defective prosthesis is not subject to strict liability. The health care provider is a service provider. The sale of the device is incidental to the health care service. CMC is not a seller of goods subject to strict liability for defective products; it is a service provider.
Citation Royer v. Catholic Medical Center, 1000 WL 1054735 (Slip Copy, Sup. Ct., NH)

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