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When Hospitals Fail to Stop Using Recalled Drugs is it Negligence or Malpractice?

Recent recalls in the news have included consumer items like faulty strollers and automobiles with faulty airbags.  But have you ever heard of a prescription drug recall?  They do happen and it’s up to doctors and hospitals that use these drugs to be vigilant and aware of the recalls and act accordingly.   Now a Brevard County, Florida hospital has had their request to dismiss a negligence lawsuit –involving a man who ended up a double amputee – denied by an appeals court.

The victim filed a lawsuit against Holmes Regional Medical Center after he received a contaminated dose of the drug heparin during a bypass surgery.  The contaminated drug caused a severe bacterial infection that led to the amputation of his left leg and right foot.

The reason that the victims in this case filed a negligence personal injury case is that the allegedly wrongful act was the hospital's administrative failure to properly remove heparin from its inventory, which it knew or should have known had been recalled. This alleged failure of administrative policy is not unlike the failure of a grocery store to remove a tainted product after having been notified of a recall. Thus the hospital's allegedly wrongful act is not unique to the hospital setting and does not involve professional medical judgment or skill. For these reasons, the claim sounds in ordinary negligence rather than medical malpractice.

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What’s the difference between medical malpractice and negligence?  Negligence is the failure to use the degree of care appropriate to the circumstances, resulting in an unintended injury to another.  Whereas medical malpractice occurs when a doctor or another health care professional treats a patient in a manner that does not measure up to the accepted medical standards.  Surgical errors/mistakes, improper diagnosis, misdiagnosis and birth injuries are just a few examples of medical malpractice.

As Virginia (VA) medical malpractice lawyers we know that the state of Virginia (VA) and many other states have laws that put caps on claims from medical malpractice injuries, which would limit the amount of compensation the victim would receive. 


Randall E. Appleton
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Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
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