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Medical Malpractice: Do Not Overlook the Case Against the Manufacturer Representative Who Engaged in the Unauthorized ractice

of Medicine
3.5.14 Our law firm has noticed an alarmingly and rapidly growing trend in many patient charts we have reviewed: the presence of manufacturer representatives who have taken such active roles in the patients health care that their actions may constitute the unauthorized practice of medicine. ore and more we have come across cases where the reps are actually counseling the patient on vital decisions regarding the patients health care and showing up in the operating room. !e have even seen instances where the intra"operative notes indicate that the representative placed his or her hands on the patient during surgery. #n some cases$ the actions of the representative caused or contri%uted to the patients in&ury or death. #n reviewing potential medical malpractice cases$ the trial lawyer should not &ust consider the negligence of the traditional health care providers$ %ut also the negligence of the manufacturer representative. 'mong the types of cases in which manufacturer representatives have %een sued for the unauthorized practice of medicine or negligently performing assumed duties include orthopedic spine surgeries$ orthopedic prosthetic (hip and knee) surgeries$ cardiac stent and pacemaker procedures$ and cosmetic laser surgeries. ost of the cases in which we have seen the presence of manufacturer representatives are orthopedic cases. *irginia +ode ,ections 54.1"-./- et. se0. prohi%it the unauthorized practice of medicine. ' patient harmed as a result of a manufacturer representatives actions should consider %ringing a suit against the representative for negligence per se in violating the aforementioned statute$ as well as negligence in the discharge of duties voluntarily assumed. 1here may also %e potential claims for %reach of e2press warranties or implied warranties of fitness for a particular purpose. #n the situation in which the rep actually places his or her hands on the patient$ a count for %attery may also %e %rought. #n *irginia$ where there e2ists a cap on medical malpractice cases$ a verdict o%tained against a manufacturer representative who is not a 3health care provider4 as defined %y the *irginia edical alpractice 'ct$ seemingly may e2ceed the cap. 1he trial lawyer handling medical malpractice cases should not overlook cases against the manufacturer representative who has engaged in the unauthorized practice of medicine. Cantor !tone"urner #ord $rana % &uckner 513/ 6len 7orest 8rive ,uite 4// 9ichmond *' -3--: 1";//":4;"14;; virginiatrialfirm.com #cantor<virginiatrialfirm.com