## Facts

- An oral and maxillofacial surgeon treated a patient for temporomandibular joint (TMJ) pain and surgically implanted TMJ devices manufactured by a third party in 1983.
- The surgeon advised the patient to return for routine follow-up and to seek care if she experienced pain.
- The patient returned once in 1984 with TMJ pain; the surgeon noted missed appointments and referred her to her dentist for splint replacement.
- The patient did not follow through with the referral, did not continue follow-up with the surgeon, and later self-treated recurring pain.
- Years later, the medical device was linked to defects associated with a Teflon-based material; official safety alerts were issued in 1990 and a recall followed in 1991.
- After the 1990 alert and 1991 recall, the surgeon’s office mailed notices to all patients who had received the implants at their last known addresses; the patient’s notices were not returned.
- In 1993, after learning of device problems from a television program, the patient contacted the surgeon; the surgeon removed the implants in 1994.
- The patient did not allege negligence in the original implantation or later removal, but claimed the surgeon had a post-surgical duty to warn her earlier and more effectively.

## Issues

1. Whether a treating surgeon who selects and implants a medical device may be held strictly liable as a “supplier” when the device is later determined to be defective.
2. Whether the surgeon breached a negligence-based duty to warn by failing to contact the patient before official safety alerts/recall, or by failing to ensure she actually received and understood the later mailed notices.

## Decision

- The appellate court affirmed an involuntary dismissal entered after the patient’s case-in-chief.
- The court held that, as a matter of public policy, the surgeon could not be held strictly liable for implanting a product later shown to be defective.
- The court held that substantial evidence supported the trial court’s finding that the surgeon did not breach any duty to warn under a negligence theory.

## Legal Principles

- Health-care providers who render professional services are generally not treated as commercial sellers or distributors for purposes of strict products liability when they incidentally provide a medical device in the course of treatment.
- Imposing strict products liability on treating physicians for later-discovered product defects is disfavored as a policy matter because it risks conflating malpractice and products liability and may affect medical decision-making.
- A post-treatment duty to warn is evaluated under ordinary negligence standards based on what a reasonably prudent physician would do given the information reasonably available at the relevant time.
- When official safety alerts or recalls issue, reasonable efforts to notify affected patients may include mailing warnings to the patient’s last known address; a plaintiff must still prove breach and causation.

## Conclusion

The court affirmed dismissal of both claims, ruling that a treating surgeon is not strictly liable as a product “supplier” for a later-defective implant and that the evidence supported the finding that the surgeon took reasonable steps and did not negligently breach any post-surgical duty to warn.


Tanuz v. Carlberg, 921 P.2d 309 (N.M. Ct. App. 1996)