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No Liability Found in Texas Defective Ventilator Case

irma-wants-some-coffee-982474-mIn Texas, to prove a product liability case, a plaintiff must show the product was defective, the product reached the plaintiff in a defective condition, the defect made the product unreasonably dangerous, and the defect caused the plaintiff’s damages. In a 2014 products liability case, a deceased woman’s estate appealed a summary judgment in favor of the company Respironics.

The case arose when the woman contracted Lou Gehrig’s and became paralyzed. She needed a respirator to breathe. The woman’s husband bought a home respirator and hired a nurse through a nursing service. In 2004, a nurse was caring for the woman and allegedly adjusted a valve on the respirator incorrectly.

The deceased woman’s husband sued the medical staffing agency for negligence. The plaintiff’s third amendment joined Respironics, which designed, manufactured, and sold the respirator. He claimed the ventilator was designed and manufactured to allow a patient to suffer respiratory arrest without sounding an alarm. He also claimed the ventilator was marketed with inadequate warnings that there would be no alarm for respiratory arrest.

The manufacturer answered and claimed that the woman’s injuries and death didn’t have anything to do with the ventilator or any of its other products. It also claimed that its product was sold to sophisticated users who knew or should have known of the potential hazards of using the product.

During discovery, the manufacturer objected to testing the actual ventilator because it hadn’t been maintained on an annual basis since the accident, and so there was a high likelihood that it wasn’t operating correctly. The trial court agreed to a new scheduling order in connection with expert designations. The manufacturer filed a summary judgment motion, arguing that evidence conclusively showed that the ventilator was operating properly and that there was no evidence the ventilator did not sound an alarm to show respiratory distress.

In support of its motion, the manufacturer attached the deposition of a registered respiratory therapist who met the decedent’s caregiver in a home inspection. The therapist had made sure the ventilator was within certification and tested. The alarms had worked properly at that time. He had offered to do classes for the nurses at the nursing service, and he was told all the nurses were already certified and trained. Only a physician was authorized to change the settings on the ventilator, and the therapist had checked with staff later to make sure the ventilator was doing the job.

After the decedent died, the physician talked to the nurse, who said the woman was already dead when she arrived. The therapist checked the ventilator again, and it alarmed. The nurse claimed one of the tubes was off, and so the therapist looked more closely and saw that the valve was cranked down too much.

A licensed vocational nurse’s deposition was also attached to the manufacturer’s motion for summary judgment. She testified that she had written a note that indicated that she had checked the alarms and that the decedent had been given medication by somebody and checked all the lines. She testified that she couldn’t swear she had heard the alarm, but she hadn’t adjusted the valve. She was the one to perform CPR.

The caregiver testified that she had cared for the decedent for three or four years, and that when she arrived the decedent was dead and the nurse was reading the newspaper. She saw that the valve had been changed. It was off and disconnected her from the ventilator and started CPR.

Summary judgment was entered in favor of the manufacturer. The plaintiff appealed, arguing that the manufacturer had delayed in producing relevant documents and that this had adversely affected his ability to prepare for the summary judgment. Among other things, he argued that the testimony of the nurse and the caregiver raised a factual issue about whether the ventilator had failed to sound.

The appellate court explained that the plaintiff had failed to present expert testimony that the ventilator was defective when it left the manufacturer. The therapist had testified that he had tested the ventilator before the decedent’s death and after the decedent’s death and that it was working. The appellate court affirmed the trial court’s judgment.

If a loved one dies due to a defective medical device or product, it’s important to retain attorneys with experience in these challenging cases. The experienced San Antonio wrongful death attorneys at Carabin & Shaw may be able to help. Call our office for more information at 1-800-862-1260.

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