Preserving Physical Evidence

A very important part of the investigation is preserving physical evidence. If the patient was injured of a defect in a piece of equipment, the proper party to sue may be the equipment manufacturer. The risk manager must be very careful to determine if the injury resulted from the design or construction of equipment rather than from an error by the hospital staff. Defective equipment can range from a multimillion-dollar x-ray therapy machine to a surgical needle. The entire hospital staff, both nursing and medical, should be carefully informed about the product liability issues in medical lawsuits. An extremely important part of any incident investigation is the recognition of risks that parties other than the hospital are legally responsible for.

The modern hospital acts as both a nursing service and a medical supply house. The hospital supplies drugs, surgical equipment, diagnostic equipment, toilet tissue, and an enormous list of other items. In most cases, the hospital passes these items along to the patient without altering them from their manufactured state. There is not even much presterilization since the advent of disposable medical supplies. If an item that the hospital dispenses injures a patient, the hospital want the patient the sue the manufacturer of that item rather than the hospital. If the patient does sues the hospital, the hospital should then sue the manufacturer for whatever damages the lawsuit causes the hospital to suffer. The investigator must ensure that the identity of the item that injured the patient is determined and that the item is preserved for future testing and investigation. This should be part of the incident reporting process. The staff must be encouraged to save the defective item and any packaging material that has not been destroyed. These items should be sealed in clear plastic bags and carefully labeled as to the patient and the incident. The risk manager should immediately determined who the manufacturer is and check the remaining stock of the item for defects. The remaining units should be impounded and the manufacturer asked to replace them. It is very important not to allow a second patient to be injured by the same item. The first injury may be the manufacturer's fault, but the second injury will be the hospital's fault.

An incident involving a defective product should be brought to the attention of the hospital's counsel. While it may be possible to prevent the discovery of information about the defective product, such prevention is not desirable. The attorney may need to institute legal action against the product's manufacturer to protect the hospital's interests. The attorney may also want to cooperate with the patient's attorney. to make these types of action more effective, the quality control program must be coordinated with the hospital's purchasing program. The purchasing agent should know the manufacturer and distributor for each item that is purchased. The hospital must avoid purchasing items that have an unclear origin or are manufactured by a company against which it would be difficult to obtain a judgment. This may not be important for items such as tissue paper, but for items with great potential for harm (such as IV solutions or disposable needles) it can be cheap insurance to pay a few cents more for an item from an established manufacturer. Even if the two products are equally good, it is to the hospital's benefit to have a responsible party to sue if there is a defect.

If the patient's attorney can sue the manufacturer of a defective product, that attorney will be more likely to settle with the hospital. This occurs because it is much simpler (and more lucrative) to litigate a defective product claim than a medical malpractice claim. To take advantage of this, the hospital must be prepared to share information with the patient's attorney.