Question

Part 1. Please answer the following questions with a short answer. Please use complete sentences and show you understand the concept. Each question is worth 10 points. Each question should be complete with information relative to our cumulative studies thus far in the course. Each answer requires a minimum of three paragraphs.

What is product liability? Describe what legal theories an injured party may use in proceeding with a law suit. List the elements necessary to make a valid contract. Describe how the statute of limitations favors defendants in a lawsuit. Describe the difference between the certification and licensing of a healthcare professional. As a hospital administrator list 5 behaviors that you would require for your caregivers in order to positively impact patient safety.

Part 2. Please answer the following questions with a short essay. Each question is worth 25 points each and must include cases we have studied, theory we have studied, etc. Each short essay requires at least one reference and in-text citations. Each answer must be a minimum of one page (single spaced, 12 font, 1 inch margins).

You are a hospital administrator concerned with patient safety. Your hospital has been sued several times for injuries related to patient falls. What could you implement to decrease patient falls thereby improving safety? What causes a patient to bring a lawsuit against their caregivers?

A recent study by medical researcher Wendy Levison found that surgeons who had never been sued spent more than three minutes longer with each patient than those who had been sued. If this is credible what training would you provide to give caregivers to decrease the incidence of lawsuits?

Answer 1

Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has broad connotations, product liability as an area of law is traditionally limited to products in the form of tangible personal property.

Product liability by country

The overwhelming majority of countries have strongly preferred to address product liability through legislative means.in most countries, this occurred either by enacting a separate product liability act, adding product liability rules to an existing civil code, or including strict liability within a comprehensive Consumer Protection Act.in the United States, product liability law was developed primarily through case law from state courts as well as the Restatements of the Law produced by the American Law Institute

The United States and the European Union's product liability regimes are the two leading models for how to impose strict liability for defective products, meaning that "[v]irtually every product liability regime in the world follows one of these two models."

United States

The United States was the birthplace of modern product liability law during the 20th century, due to the 1963 Greenman decision which led to the emergence of product liability as a distinct field of private law. In 1993, Geraint Howells explained: "No other country can match the United States for the number and diversity of its product liability cases, nor for the prominence of the subject in the eyes of the general public and legal practitioners."According to Mathias Reimann, this was still true as of 2015: "In the United States, product liability continues to play a big role: litigation is much more frequent there than anywhere else in the world, awards are higher, and publicity is significant."

In the United States, the majority of product liability laws are determined at the state level and vary widely from state to state.Each type of product liability claim requires proof of different elements in order to present a valid claim.

History

For a variety of complex historical reasons beyond the scope of this article, personal injury lawsuits in tort for monetary damages were virtually nonexistent before the Second Industrial Revolution of the 19th century. As a subset of personal injury cases, product liability cases were extraordinarily rare, but it appears that in the few that were brought, the general rule at early common law was probably what modern observers would call no-fault or strict liability. In other words, the plaintiff only needed to prove causation and damages.

Common law courts began to shift towards a no-liability regime for products (except for cases of fraud or breach of express warranty) by developing the doctrine of caveat emptor (buyer beware) in the early 1600s.As personal injury and product liability claims began to slowly increase during the early First Industrial Revolution (due to increased mobility of both people and products), common law courts in both England and the United States in the 1840s erected further barriers to plaintiffs by requiring them to prove negligence on the part of the defendant (i.e., that the defendant was at fault because its conduct had failed to meet the standard of care expected of a reasonable person), and to overcome the defense of lack of privity of contract in cases where the plaintiff had not dealt directly with the manufacturer (as exemplified by Winterbottom v. Wright (1842)).During the Second Industrial Revolution of the mid-to-late 19th century, consumers increasingly became several steps removed from the original manufacturers of products and the unjust effects of all these doctrines became widely evident.

State courts in the United States began to look for ways to ameliorate the harsh effects of such legal doctrines, as did the British Parliament.For example, one method was to find implied warranties implicit in the nature of certain contracts; by the end of the 19th century, enough U.S. states had adopted an implied warranty of merchantable quality that this warranty was restated in statutory form in the U.S. Uniform Sales Act of 1906, which drew inspiration from the British Sale of Goods Act 1893.

During the 1940s, 1950s, and 1960s, American law professors Fleming James Jr. and William Prosser published competing visions for the future of the nascent field of product liability. James acknowledged that traditional negligence and warranty law were inadequate solutions for the problems presented by defective products, but argued in 1955 those issues could be resolved by a modification of warranty law "tailored to meet modern needs," while Prosser argued in 1960 that strict liability in tort ought to be "declared outright" without "an illusory contract mask."Ultimately, it was Prosser's view which prevailed.

The first step towards modern product liability law occurred in the landmark New York case of MacPherson v. Buick Motor Co. (1916), which demolished the privity bar to recovery in negligence actions. By 1955, James was citing MacPherson to argue that "[t]he citadel of privity has crumbled," although Maine, the last holdout, would not adopt MacPherson until 1982.

The second step was the landmark New Jersey case of Henningsen v. Bloomfield Motors, Inc. (1960), which demolished the privity bar to recovery in actions for breach of implied warranty.Prosser cited Henningsen in 1960 as the "fall of the citadel of privity."The Henningsen court helped articulate the rationale for the imminent shift from breach of warranty (sounding in contract) to strict liability (sounding in tort) as the dominant theory in product liability cases, but did not actually impose strict liability for defective products.

The third step was the landmark California case of Greenman v. Yuba Power Products, Inc. (1963), in which the Supreme Court of California openly articulated and adopted the doctrine of strict liability in tort for defective products. Greenman heralded a fundamental shift in how Americans thought about product liability towards a theory of enterprise liability—instead of basing liability on the defendant's "fault" or "warranty", the defendant's liability should be predicated, as a matter of public policy, on the simple question of whether it was part of a business enterprise responsible for inflicting injuries on human beings. The theoretical foundation for enterprise liability had been laid by James as well as another law professor, Leon Green. As noted above, it was Greenman which led to the actual emergence of product liability as a distinct field of private law in its own right.Before this point, products had appeared in case law and scholarly literature only in connection with the application of existing doctrines in contract and tort.

The Greenman majority opinion was authored by then-Associate Justice Roger J. Traynor, who cited to his own earlier concurring opinion in Escola v. Coca-Cola Bottling Co. (1944). In Escola, now also widely recognized as a landmark case,justice Traynor laid the foundation for Greenman with these words:

Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.