Actor Dennis Quaid and his wife have sued the makers of heparin for the overdosing of their newborn twins after they were given massive doses of the blood thinner at an Indianapolis hospital.  Strangely, they have not sued the hospital which clearly erred in selecting the dosage. However, the hospital is not likely to escape litigation since Baxter Healthcare may bring it in as a co-defendant.

This is clearly not about money. Indeed, not much in terms of damages is being sought. To their credit, the Quaids are trying to protect future kids to confronting this company.

On its face, the Quaid case is a standard product liability claim.  There are some interesting twists, however.  First, the Quaids are not alleging a defect in the blood thinner itself but how it is packaged.   They claim that the company used similar blue backgrounds for different doses, making confusion likely.  Indeed, they cited the deaths of three children in  Indianapolis hospital last year as events that should have caused the company to change its packaging and recall existing dosages.

The Quaids’  twin babies, Thomas Boone and Zoe Grace, re mistakenly given vials of heparin that were 1,000 times stronger than the intended or necessary dosage.  A third child was also overdosed at  Cedars-Sinai Medical Center. The vials contained  10,000 units per milliliter of heparin instead of vials with a concentration of 10 units per milliliter.

Last February, Baxter Healthcare Corp. appeared to respond to prior deaths and overdoses with a letter warning health care workers to carefully read labels on the heparin packages.  That is a pretty weak response.  Notably, under the post-remedial repair rule, a company’s decision to change a design or product for safety cannot be used against it in a trial. This rule is designed to encourage companies like Baxter Healthcare to take substantive action to make products safer without fear that it could become an admission of guilt in a future case against it.  (It can sometimes get into trial through impeachment exceptions, however).

What is curious is that the hospital is not being sued.  The hospital, to its credit, immediately admitted error and may have succeeded in winning over the Quaids.  However, this is clearly a case of mutual fault.  Indeed, Baxter Healthcare (which would be wise to settle this case as fast as possible) can claim that it was the negligence of the hospital, not the product, that caused the accident. However, a manufacturer is liable for foreseeable misuse.  It is bizarre that the company would not label the vials more clearly.  Under the traditional Hand formula (which looks at the burden of avoiding an accident versus the probability and seriousness of an injury), the company does not look good.  The burden here is very small in packaging while the probability and the injuries are considerable.

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