Taylor v. Intuitive Surgical, Inc.

Madsen, J.

(dissenting)

¶54 I agree with the majority that strict liability governs inadequate warning claims on dangerous medical products because the exception found in comment k to section 402A of the Restatement (Second) of Torts (Am. Law. Inst. 1965) is predicated on adequate warnings being given. And I agree that Intuitive Surgical Inc. (ISI) had a duty to warn Harrison Medical Center of the dangers of the “da Vinci System” surgical device when Harrison purchased that product. I write separately, however, because even though this duty exists, it is not a duty that was owed to the petitioner in this case. Therefore, the trial court did not err by not instructing the jury on ISI’s duty to warn Harrison.

Discussion

¶55 The majority holds that the Washington product liability act (WPLA), chapter 7.72 RCW, requires manufacturers to warn purchasers of the dangers of their products because the WPLA states that a product is not reasonably *770safe if adequate warnings are not provided with the product. See majority at 754 (citing RCW 7.72.030(1)(b)). Thus, because Harrison was the purchaser of the da Vinci System, ISI had a duty to provide warnings to Harrison. Although I concur with the majority’s conclusion based on the text of the WPLA that ISI owed a duty to Harrison, I cannot agree that Josette Taylor somehow has the ability to invoke this duty that was owed to Harrison.

¶56 Under the WPLA, a manufacturer must provide adequate warnings with its product. RCW 7.72.030(l)(b); see majority at 753-54. This duty, however, is one that the manufacturer owes the purchaser. The manufacturer must provide product warnings with the product that the purchaser purchases. See majority at 754-55. Here, ISI would owe this duty to Harrison. So if ISI breached this duty, Harrison would presumably have a claim against ISI. But Taylor has no claim to enforce a duty owed to another. Taylor cannot invoke a duty owed to Harrison to recover damages from ISI.

¶57 Taylor is not alleging that ISI breached a duty to warn her or her husband, Fred Taylor, nor could she. Any theoretical duty here is untenable. There are several steps between ISI and Taylor. ISI manufactured the product, ISI sold the product to Harrison, Harrison credentialed the doctor, and the doctor ultimately operated on Taylor’s husband using the product. Although different duties exist in that chain of events, none supports this claim. First, a duty to Taylor from ISI does not pass through the doctor. As this court has said, it is a well-established rule that “the duty of the manufacturer to warn of dangers involved in use of a product is satisfied if he gives adequate warning to the physician who prescribes it.” Terhune v. A.H. Robins Co., 90 Wn.2d 9, 13, 577 P.2d 975 (1978). The duty to warn runs to the physician, not the patient. Thus this cannot be the basis for Taylor’s claim against ISI.

¶58 Second, a duty to Taylor from ISI does not pass through the hospital. Harrison’s potential liability to Taylor *771for credentialing Dr. Scott Bildsten does not save Taylor’s claim because Taylor has already settled all claims against Harrison. Taylor suggests that she can bring this claim because ISI’s failure to warn Harrison may have caused Harrison to credential doctors it would not have otherwise, which in turn caused the ultimate injury to her husband. But by rooting her claim in Harrison’s credentialing, it appears that Taylor is really seeking recovery from ISI for a claim that she has already settled with Harrison. Seeking recovery from ISI for the failure of Harrison in credentialing its doctors is also improper because hospitals owe a nondelegable duty to their patients. See Douglas v. Freeman, 117 Wn.2d 242, 248, 814 P.2d 1160 (1991). Any duty that Harrison owed to Taylor could not have been delegated to ISI. Thus, this also cannot be the basis for Taylor’s claim against ISI. ISI simply owed no duty to warn—direct or indirect—to Taylor.

¶59 Taylor cannot recover for an alleged breach of a duty that was owed to another. She has no claim against ISI for a breach of its duty to Harrison. Because Harrison is not a party to this case and thus cannot assert a claim against ISI, the trial court did not err by not instructing the jury as to the duty that ISI owed Harrison. Even if the trial court erroneously believed that no such duty existed, remanding this case would not suddenly give Taylor a cause of action to invoke a duty owed to another.

¶60 Accordingly, I respectfully dissent.

Fairhurst, C.J., and Yu, J., concur with Madsen, J.