Porter v. Rosenberg

• Decision Date: 04 January 1995
• Docket Number: No. 93-0758,93-0758
• Citation: 650 So.2d 79
• Parties: 20 Fla. L. Weekly D135, Prod.Liab.Rep. (CCH) P 14,133 Kay PORTER, Appellant, v. Robert Kent ROSENBERG, M.D., F.A.C.S.; McGhan Medical Corp.; Inamed Corp.; 3-M Corp.; Cox Uphoff, International; Surgical Specialties, Inc.; Surgitek, a/k/a Surgitech; Bristol-Meyers Squibb Co.; Surgitek/Medical Engineering Corp.; Heyer-Schulte; Natural Y Surgical Specialties, Inc.; Cooper Medical Devices, Inc.; Alcon Laboratories, Inc.; Mentor Corp.; Baxter Health Care Corp.; Dow Corning Corp.; Dow Corning Wright; Dow Chemical Co.; Corning, Inc.; Dowelanco; and Surgicenter of the Palm Beaches, Appellees.
• Court: Florida District Court of Appeals

Page 79

650 So.2d 79

20 Fla. L. Weekly D135, Prod.Liab.Rep. (CCH) P 14,133

Kay PORTER, Appellant, v. Robert Kent ROSENBERG, M.D., F.A.C.S.; McGhan Medical Corp.; Inamed Corp.; 3-M Corp.; Cox Uphoff International; Surgical Specialties, Inc.; Surgitek, a/k/a Surgitech; Bristol-Meyers Squibb Co.; Surgitek/Medical Engineering Corp.; Heyer-Schulte; Natural Y Surgical Specialties, Inc.; Cooper Medical Devices, Inc.; Alcon Laboratories, Inc.; Mentor Corp.; Baxter Health Care Corp.; Dow Corning Corp.; Dow Corning Wright; Dow Chemical Co.; Corning, Inc.; Dowelanco; and Surgicenter of the Palm Beaches, Appellees.

No. 93-0758.

District Court of Appeal of Florida Fourth District.

Jan. 4, 1995.

Motion for Certification Denied Feb. 22, 1995.

Philip M. Burlington, Caruso, Burlington, Bohn & Compiani, P.A., and Richard D. Schuler of Schuler, Wilkerson, Halvorson & Williams, P.A., West Palm Beach, for appellant.

David W. Spicer and Eugene Ciotoli, Bobo, Spicer, Ciotoli, Fulford, Bocchino, Weidner, Debovoise & Leclainche, P.A., West Palm Beach, for appellee Rosenberg.

PARIENTE, Judge.

Appellant, Kay Porter (plaintiff), a recipient of an allegedly defective breast implant, appeals the dismissal of her strict liability count against appellee, Robert Kent Rosenberg, M.D. (physician), who implanted the device, urging this court to extend the doctrine of strict liability to physicians. She claims that a physician who places a breast implant in a patient should be held strictly liable as any other distributor or seller of the product.

Because we do not find strict liability applicable to an action against a physician who supplies a product to a patient where the medical services could not have been rendered without using the product and where the predominant purpose of the transaction is the provision of medical services, we affirm the order of the trial court dismissing the complaint against the plastic surgeon with prejudice. Plaintiff pled only strict liability against the plastic surgeon and we find it inapplicable under these circumstances.

Plaintiff instituted a personal injury claim, including counts for strict liability against twenty-one separate defendants who were either manufacturers or distributors of the product to the medical community and to the general public. The product is a mammary prosthesis commonly referred to as a breast implant. The complaint separately stated that Dr. Rosenberg as the physician "recommended, promoted, distributed and/or supplied said mammary prosthesis to the general public." Plaintiff did not claim any errors, omissions or deviations in the medical procedure performed by the physician nor did she allege a failure to warn of the inherent dangers of the breast implant product. The sole basis alleged for the physician's liability was his role as seller or distributor of the breast implant product.

There is no dispute that a breast implant is a product for purposes of strict liability. Causes of action in strict liability have been recognized against the manufacturer and other entities responsible for the sale and implantation of various prostheses into the human body, including breast implants. 3-M Corp. v. Brown, 475 So.2d 994 (Fla. 1st DCA 1985) (breast implant); E.R. Squibb & Sons, Inc. v. Stickney, 274 So.2d 898 (Fla. 1st DCA 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1978, 40 L.Ed.2d 311 (1974) (bone graft material); compare Artiglio v. Superior Court, 22 Cal.App.4th 1388, 27 Cal.Rptr.2d 589 (1994) (in suit brought against manufacturer of a breast implant, the court held that the California judicially-created rule barring strict liability design defect claims in prescription drug cases extended to breast implant devices available only by resort to services of a physician).

Strict liability is applicable to distributors of medical products or prostheses, such as a breast implant. Section 402A of the Restatement (Second) of Torts, which sets forth the doctrine of strict liability, was judicially adopted by the supreme court in West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), although never legislatively enacted. While West only dealt with the applicability of strict liability to manufacturers of defective products, in consonance with comment (f) to section 402A, the doctrine has subsequently been extended to all distributors of the product. Adobe Bldg. Ctrs., Inc. v. Reynolds, 403 So.2d 1033 (Fla. 4th DCA), review dismissed, 411 So.2d 380 (Fla.1981); Visnoski v. J.C. Penney Co., 477 So.2d 29 (Fla. 2d DCA 1985); Perry v. Luby Chevrolet, Inc., 446 So.2d 1150 (Fla. 3d DCA 1984). The rationale for applying strict liability to distributors is that:

Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.

Adobe Bldg. Ctrs., 403 So.2d at 1037 (Hurley, J., concurring), citing Traynor, J., in Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262, 37 Cal.Rptr. 896, 899, 391 P.2d 168, 171 (1964).

Plaintiff argues that the rationale for imposing strict liability on distributors should apply in this case. Where a physician actually transfers the product to the patient, thereby profiting from the distribution of a product, plaintiff asserts the physician should share in the losses to a consumer when that product is found to be defective.

The fundamental purpose underlying the doctrine of strict products liability is to further public safety in the use of consumer goods, by imposing liability without fault upon entities that have the ability to adequately compensate the injured party, distribute the risk of loss, and deter further production of defective products. Courts, however, have been reluctant to extend strict liability to a health care provider who utilizes the product incidental to its primary function of providing medical services. ¹

In explaining the rationale for treating health care providers differently, the Pennsylvania appellate court in Cafazzo v. Central Medical Health Servs., Inc., 430 Pa.Super. 480, 635 A.2d 151, 154 (1993), explained:

Physicians, like hospitals, are providers of medical services. The physician's expertise lies in the diagnosis, treatment and cure of illness, not in the research or development of prosthetics or devices used to aid medical diagnosis or treatment. A physician is not in the business of selling products, but rather is in the profession of providing medical services. Products such as the prosthetic device in this case are supplied and utilized only as needed to deliver the professional medical service. They are incidental, or integral, to a physician's service, but they are not the focus of the physician's delivery of health care.

In many cases the health care provider is in fact more akin to the consumer or user of the product, especially where the product is not transferred to the patient but utilized incidental to the provision of medical services. In North Miami General Hosp. v. Goldberg, 520 So.2d 650 (Fla. 3d DCA 1988), the third district rejected a strict liability claim against a hospital for burns sustained by the patient from an allegedly defective electro-surgical grounding pad. However, in that case the hospital had utilized the defective piece of equipment during a surgical procedure, but had not transferred the product to the patient.

Indeed, the hospital is properly regarded as itself a consumer of the product which merely employs it in performing its actual function of providing medical services.

Id. at 652. In that situation the role of the health care provider is more analogous to that of a user of the product, rather than a distributor.

We recognize, however, that there are instances when a physician transfers a product to a patient via a medical procedure in which the physician may be performing a role that has some attributes similar to a retailer or other seller of a product. The manufacturer may be relying on the physician to promote its particular product within the chain of distribution to the general public. We further...