In some defective product cases, you can also sue the doctor for malpractice, if he had anything to do with it. An eye specialist in Illinois was implanting an artificial lens after removing a cataract. When he got the cataract ou

t of the patient’s eye, he found that the implant he planned to use was defective and could not be inserted. Since the hospital did not have a replacement available, he could not finish the operation. He had to sew up the eye without the implant and do a second operation, which went wrong and

resulted in permanent loss of vision. The court held that the manufacturer and the hospital were liable to the patient, for selling a defective product to the hospital, even though they never had anything to do with the patient.

Could the patient also sue the doctor? Yes. There is always the chance that a surgical implant will be found to be defective, damaged in handling, or accidentally contaminated, so it cannot be used. A patient obviously cannot be kept on the operating table under anesthesia, while the factory ships a replacement. So, the surgeon and the hospital have a duty to be sure that a sterile back-up is available in the operative room in case anything happens. But, that is malpractice, which is different from the strict liability we are discussing. The patient would have to show they were both guilty of negligence and failed to anticipate the mishap, which would not be too difficult.

What if you do not find out you were injured by some machine or device until a long time later, when the product that injured you has been thrown away and can no longer be examined for flaws? What if the defective wheelchair, the contaminated injection vial, or the short-circuited heating pad have been thrown away by the time your lawyer asks to have them examined? How can you prove you were injured?

The Rule Is: It does not matter. All you have to do is show your injury was of the type that could have been caused by such a defective product. Then the defense has to prove that it was not. You do not have to produce the actual item that harmed you, especially if you can show that it is no longer available.