Silverhart v. Mount Zion Hospital

• Citation: 20 Cal.App.3d 1022,98 Cal.Rptr. 187
• Court: California Court of Appeals Court of Appeals
• Decision Date: 05 November 1971
• Parties: , 54 A.L.R.3d 250 Alice SILVERHART, Plaintiff and Appellant, v. MOUNT ZION HOSPITAL, Defendant and Respondent. Civ. 28231.

Page 187

98 Cal.Rptr. 187

20 Cal.App.3d 1022, 54 A.L.R.3d 250

Alice SILVERHART, Plaintiff and Appellant, v. MOUNT ZION HOSPITAL, Defendant and Respondent.

Civ. 28231.

Court of Appeal, First District, Division 1, California.

Nov. 5, 1971.

David P. Weaver, Jr., San Francisco, for plaintiff and appellant; Jay R. Mayhall, San Francisco, of counsel.

Crosby, Heavy, Roach & May, Professional Corp., Christ G. Gasparich, Raoul D. Kennedy, Oakland, for defendant and respondent.

MOLINARI, Presiding Justice.

This is an appeal by plaintiff from a judgment for defendant hospital in an action for damages allegedly sustained by plaintiff when a surgical needle broke during a surgical operation and became permanently lodged within plaintiff's body.

In December 1964 plaintiff entered defendant hospital for a vaginal hysterectomy to be performed by Dr. K. Warren Newgard, a specialist in the field of obstetrics and gynecology and a member of the staff of said hospital. Dr. Newgard, a practicing surgeon with over 26 years' experience, considered the contemplated surgery to be 'routine.'

During the operation, while Dr. Newgard was inserting the first suture in the vaginal area, a surgical needle broke and two-thirds of the sharp end of the needle receded into the lower pelvic area, where it has remained imbedded. ¹ Dr. Newgard proceeded with the operation and plaintiff had a normal convalescence.

Dr. Newgard testified that there are two major types of half-round surgical needles, one of which is heavier and contains greater tensile strength than the other. The heavier needle is called a Mayo needle and the lighter one, a Fergusson needle. Dr. Newgard has a standing order with the hospital that in vaginal surgery he is to be supplied solely with the Mayo surgical needle. ²

At the commencement of the trial, plaintiff's counsel submitted a trial memorandum which advised the court that one of the issues to be raised was strict liability in tort. Counsel also mentioned this theory to the jury in his opening statement. At the conclusion of the trial, plaintiff submitted jury instructions which included one covering strict liability in tort. The court refused to give this instruction and submitted the issue of the hospital's liability to the jury solely on the theory of negligence. The jury returned a verdict for defendant hospital and against plaintiff. ³

Plaintiff first contends that the court erred in not instructing the jury that defendant was strictly liable in tort if the needle was defective.

The doctrine of strict liability in tort was first applied in this state in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, a case involving a manufacturer of a product. In that case the rule of strict liability was stated thusly: 'A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.' (At p. 62, 27 Cal.Rptr. at p. 700, 377 P.2d at p. 900.)

Subsequent cases have expanded the scope of the Greenman doctrine by imposing strict liability on retail dealers (Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262, 37 Cal.Rptr. 896, 391 P.2d 168); wholesale and retail distributors (Barth v. B. F. Goodrich Tire Co., 265 Cal.App.2d 228, 252--253, 71 Cal.Rptr. 306); homebuilders (Kriegler v. Eichler Homes, Inc., 269 Cal.App.2d 224, 226--227, 74 Cal.Rptr. 749); bailors and lessors of personal property (McClaflin v. Bayshore Equipment Rental Co., 274 Cal.App.2d 446, 452, 79 Cal.Rptr. 337; Price v. Shell Oil Co., 2 Cal.3d 245, 253, 85 Cal.Rptr. 178, 466 P.2d 722); and licensors of chattels (Garcia v. Halsett, 3 Cal.App.3d 319, 325, 82 Cal.Rptr. 420). The standard of strict liability has been held to apply to a defect in design as well as a defect in manufacture (Pike v. Frank G. Hough Co., 2 Cal.3d 465, 475, 85 Cal.Rptr. 629, 467 P.2d 229; Putensen v. Clay Adams, Inc., 12 Cal.App.3d 1062, 1072, 91 Cal.Rptr. 319) and extends not only to actual consumers or users but to any human being to whom an injury from the defect is reasonably foreseeable. (Elmore v. American Motors Corp., 70 Cal.2d 578 585--587, 75 Cal.Rptr. 652, 451 P.2d 84; Johnson v. Standard Brands Paint Co., 274 Cal.App.2d 331, 338, 79 Cal.Rptr. 194; Putensen v. Clay Adams, Inc., supra.)

A significant common element running through the cases is that each of the defendants against whom the standard of strict liability has been applied played an integral and vital part in the overall production or marketing enterprise. At the very least the defendant in each case was a link in the chain of getting goods from the manufacturer to the ultimate user or consumer. (See Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897; Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256, 262, 37 Cal.Rptr. 896, 391 P.2d 168; Price v. Shell Oil Co., supra, 2 Cal.3d 245, 250--251, 85 Cal.Rptr. 178, 466 P.2d 722; Kriegler v. Eichler Homes, Inc., supra, 269 Cal.App.2d 224, 227, 74 Cal.Rptr. 749; Barth v. B. F. Goodrich Tire Co., supra, 265 Cal.App.2d 228, 253--254, 71 Cal.Rptr. 306; Garcia v. Halsett, supra, 3 Cal.App.3d 319, 325--326, 82 Cal.Rptr. 420.)

Plaintiff seeks to extend the doctrine of strict liability to a hospital that furnishes, in connection with the care and treatment of a patient, a product that proves to have a defect that causes injury to the patient. The theory upon which she seeks to predicate such liability is that the hospital is a 'supplier' of such product and, therefore, should be subject to the same standard of liability as any other supplier of articles or products.

In Magrine v. Krasnica, 94 N.J.Super. 228, 227 A.2d 539, affirmed Magrine v. Spector, 100 N.J.Super. 223, 241 A.2d 637, and 53 N.J. 259, 250 A.2d 129, the court declined to apply the doctrine of strict liability to a dentist whose drill, with a latent defect, broke while he was working on his patient, causing injury to the patient. The court stated, 'Of * * * meaningful significance is a recognition that the Essence of the transaction between the retail seller and the consumer relates to the Article sold. The seller is In the business of supplying the product to the consumer. It is that, and that alone, for which he is paid. A dentist or a physician offers, and is paid for, his professional services and skill. That is the Essence of the relationship between him and his patient.' (94 N.J.Super. at p. 235, 227 A.2d at p. 543.)

The foregoing statement in Magrine was cited with approval in Carmichael v. Reitz, 17 Cal.App.3d 958, 978, 95 Cal.Rptr. 381, 393. In Carmichael it was held that the doctrine of strict liability did not apply to a doctor who prescribed a drug which produced untoward results in a patient. In that case we find the following rationale: '(T)here is a difference in status or classification between those upon whom the courts have heretofore imposed the doctrine of strict liability and a physician who prescribes an ethical drug to achieve a cure of the disorders for which the patient has sought his professional services. The former act basically as mere conduits to the distribution of the product to the consumer; the latter sells or furnishes his services as a healer of illnesses. The physician's services depend upon his skill and judgment derived from his specialized training, knowledge, experience, and skill. The physician prescribes the medicine in the course of chemotherapy only as a chemical aid or instrument to achieve a cure. A doctor diagnosing and treating a patient normally is not selling either a product or insurance. One of the requisites which the Restatement prescribes for the imposition of strict liability is that 'the seller is engaged in the business of selling such product.' (Rest.2d Torts, § 402A.)' (See comment f.)

We are persuaded that the rationale of Magrine and Carmichael applies with equal force to a hospital in the exercise of its primary function which is to provide medical services. A hospital is not ordinarily engaged in the business of selling any of the products or equipment it uses in providing such services. The essence of the relationship between a hospital and its patients does not relate essentially to any product or piece of equipment it uses but to the professional services it provides. ⁴

In the present case, the process of manufacturing and distribution ended with the person or firm that sold, leased or otherwise supplied the defective needle to defendant. The needle which was first placed on the market by the manufacturer left the stream of commerce when it came into defendant's possession. The needle then became a part of the surgical equipment of the hospital that was made available to surgeons for use in surgical procedures and as a part of the hospital's medical services. In sum, the hospital itself was a User of the needle since such needle was supplied to the hospital for its use in performing medical services incident to the normal and ordinary business of the hospital.

We are persuaded, moreover, that the rule of strict liability adopted by the courts of this state precludes the application of that doctrine to a hospital under the circumstances of this case. That rule, as stated in the Restatement Second of Torts, section 402A, and adopted by our Supreme Court in Pike, is as follows: '(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the Ultimate user or consumer, or his property, if (a) the Seller is engaged in the business of selling such a product, and (b) it is expected to and does reach The user or consumer without substantial change in the condition in which it is sold. * * *' (Emphasis added; Rest.2d Torts, § 402A, pp. 347--348; Pike v. Frank C. Hough Co., supra, 2 Cal.3d 465, 475, 85...