Balkowitsch v. Minneapolis War Memorial Blood Bank, Inc., 39240

• Decision Date: 22 January 1965
• Docket Number: No. 39240,39240
• Citation: 132 N.W.2d 805,270 Minn. 151
• Parties: Marle A. BALKOWITSCH et al., Appellants, v. MINNEAPOLIS WAR MEMORIAL BLOOD BANK, INC., Respondent.
• Court: Minnesota Supreme Court

Page 805

132 N.W.2d 805

270 Minn. 151

Marle A. BALKOWITSCH et al., Appellants, v. MINNEAPOLIS WAR MEMORIAL BLOOD BANK, INC., Respondent.

No. 39240.

Supreme Court of Minnesota.

Jan. 22, 1965.

Syllabus by the Court

The relationship between the Minneapolis War Memorial Blood Bank, Inc., a nonprofit public service corporation, and the recipient by transfusion of human blood supplied by it is sui generis in that it involves acts common to legal concepts of both a sale and a service; recovery for damages sustained by recipient who contracted serum hepatitis as a result of transfusion may not be predicated on implied warranty of fitness because no medical or scientific knowledge can determine the presence in the blood of serum hepatitis and the determination of whether the benefits of the transfusion outweigh inherent risks is one of professional medical judgment.

Richard W. Johnson and Stewart R. Perry, Minneapolis, for appellants.

Meagher, Geer, Markham & Anderson, and O. C. Adamson, II, and M. J. Coyne, Minneapolis, for respondent.

MURPHY, Justice.

This is an appeal from a summary judgment for defendant in an action by which plaintiff Marie A. Balkowitsch sought to recover damages for personal injuries sustained when she contracted the disease of serum hepatitis from a transfusion of impure blood supplied by defendant, Minneapolis War Memorial Blood Bank, Inc. Plaintiff John Balkowitsch sought recovery based upon his derivative rights as the husband of Marie Balkowitsch. The claim is predicated upon a breach of implied warranty under a contractual sales-act theory as well as strict liability in tort.

The facts may be briefly stated. Between March 20 and March 29, 1958, quantities of whole blood were administered by transfusion to Mrs. Balkowitsch, hereinafter called plaintiff, while she was a patient at St. Mary's Hospital in Minneapolis. The blood she received was furnished by the defendant, the Minneapolis War Memorial Blood Bank, Inc. The transfusions were ordered by her physician. Prior to the receipt of the blood, ownership of it remained in the defendant. Payment was based upon the amount of blood received and was made directly by plaintiff to defendant. It does not seem to be disputed that the blood was contaminated and produced the disability from which plaintiff suffered. Neither is it claimed that defendant was negligent in the processing or distribution of the blood. Plaintiffs assert that defendant 'sold' the blood to her, impliedly warranting its fitness and merchantable quality; that the blood was not as warranted in that it contained the virus; and as a consequence plaintiff sustained damages.

In considering the merits of plaintiffs' case, it is necessary to examine the function of defendant's activities and the nature of the service in which it is engaged. Defendant is a nonprofit public service corporation engaged in the collection and storage of whole blood which is used for transfusion purposes. The process by which human blood is grouped and stored for use involves an advanced science which employs complex and elaborate facilities. The blood must be obtained, processed, stored, and transported so that it is immediately available in sufficient quantities, and carefully labeled as to group, ¹ RH factor, and other pertinent data. Science has perfected storage techniques with the result that whole blood may be stored safely up to 21 days and blood derivatives, such as plasma, may be stored for longer periods of time. This program is carried on largely through the activities of the American Red Cross and 923 regional blood banks, of which defendant is one, and their branch banks. In addition to these, there are one national and five district 'clearing house' offices which accomplish the interbank transfers of blood; five central and 18 regional reference laboratories; a central file of rare donors and a special bank of extremely rare blood. ² The blood-bank arrangement provides an accessible place where sufficient quantities of all kinds of blood are readily available and from which people may obtain needed blood at actual cost.

In spite of the great advancements which have been made in the collection and storage of blood, there remain certain risks which medical science has been unable to eliminate. A few diseases may be communicated from person to person by blood transfusions. Some of these are susceptible to tests whereby their presence in the blood may be ascertained. But this is not so in respect to serum hepatitis, a virus disease which is also referred to in medical literature as homologous serum hepatitis or homologous serum jaundice or simply as SH virus. ³ This situation is well summarized in the following passage quoted by defendant in its brief:

"Undoubtedly the most unsatisfactory situation in blood banking today is the inability to exercise any real control over the hazard of transmitting homologous serun jaundice by whole-blood transfusions. The risk is inherent in every bottle of blood issued. The problems of control are multiple: no donor's history is really reliable; any donor may be an innocent carrier; no laboratory test, or group of tests, is specific for the virus of hepatitis; there is no way of treating the blood to kill he virus without violating essential storage or safety requirements for whole blood; there is no susceptible laboratory test animal--man is the only known creature susceptible to the virus; and there are several ways other than the transfusion of blood, by which the disease can be acquired. Finally, to complete the frustrating cycle, one can never prove or disprove that a given case of serum hepatitis was caused by a transfusion given within the incubation period of sixty to one hundred and eighty days. When a case is reported, one is invariably left with a presumptive diagnosis between incidental infectious hepatitis, transfusion-caused hepatitis or serum hepatitis due to the use of contaminated equipment in puncturing the skin. The thing that makes the sense of frustration really acute is that there now seem to be an increasing number of damage suits brought against blood banks because of injuries sustained by reason of alleged transfusion hepatitis.

"The obvious solution to the hepatitis problem, of course, is some test or tests that are specific within reasonable limits and are sufficiently simple and rapid to be employed either in the routine screening of donors or in the routine processing of a unit of blood. Considerable effort has been expended in this endeavor during the past five years or so to establish the validity of one or more of the standard tests of liver function in screening out donors who may be virus carriers. None of these tests, however, are specific for liver dysfunction, caused by the presence of the virus of hepatitis. * * *' Dr. John B. Alsever, The Blood Bank and Homologous Serum Jaundice, 261 New England Journal of Medicine 383 (1959).'

Relatively few serum hepatitis blood-transfusion cases have been reviewed by appellate courts. The earliest reported case, Parker v. State, 280 App.Div. 157, 112 N.Y.S.2d 695, involved a transfusion of pooled dried blood plasma which the Red Cross had acquired after the United States had declared it 'war surplus.' The action was brought against the state which had distributed the plasma on the theory of negligence. In holding against plaintiff, the court commented that the medical profession was well aware of the risk of serum hepatitis and that the state had a right to expect hospitals to rely on the judgment of the medical profession as to the circumstances requiring the use of the plasma. Negligence was also one of the grounds for an unsuccessful attempt to impose liability upon the State of New York as a distributor of Red Cross pooled plasma in Hidy v. State, 207 Misc. 207, 137 N.Y.S.2d 334, affirmed, 2 App.Div.2d 644, 151 N.Y.S.2d 621, affirmed, 3 N.Y.2d 756, 163 N.Y.S.2d 985, 143 N.E.2d 528; Fischer v. Wilmington General Hospital, 1 Storey 554, 51 Del. 554, 149 A.2d 749. In discussing the asserted negligence involved in the latter case, the Delaware court said (51 Del. 561, 149 A.2d 753):

'Considering the frequency of the use of transfusions, the nature and extent of the risk involved in comparison with the alternative risk, the possible detrimental effect of advising patients of the risk and the general practice in the local medical profession not to so advise patients, the court feels impelled to conclude that this defendant (hospital) did not have a legal duty to plaintiff to advise her in advance that hepatitis might be communicated thereby. Consequently, defendant was not guilty of negligence.'

In Merck & Co. v. Kidd (6 Cir.) 242 F.2d 592, a different approach was used. There, plaintiff claimed that his hepatitis resulted from plasma transfusions and thus the plasma was an adulterated drug within the meaning of the Tennessee Food, Drug and Cosmetic Act, which makes the sale of an adulterated drug negligence per se. In setting aside a judgment for plaintiff...