Bell v. Poplar Bluff Physicians Group, Inc.

• Decision Date: 16 May 1994
• Docket Number: No. 18933,18933
• Citation: 879 S.W.2d 618
• Parties: Prod.Liab.Rep. (CCH) P 13,956 Jo Ann BELL, Plaintiff-Appellant, v. POPLAR BLUFF PHYSICIANS GROUP, INC., d/b/a Doctors Regional Medical Center, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 618

879 S.W.2d 618

Prod.Liab.Rep. (CCH) P 13,956

Jo Ann BELL, Plaintiff-Appellant, v. POPLAR BLUFF PHYSICIANS GROUP, INC., d/b/a Doctors Regional

Medical Center, Defendant-Respondent.

No. 18933.

Missouri Court of Appeals,

Southern District,

Division Two.

May 16, 1994.

Motion for Rehearing and/or

Transfer to Supreme Court Denied

June 7, 1994.

Application to Transfer Denied Aug. 15, 1994.

Randy R. Cowherd, Grant Q. Haden, Schroff, Glass & Newberry, Springfield, for plaintiff-appellant.

Kenneth W. Bean, William C. Dodson, Sandberg, Phoenix & Von Gontard, P.C., St. Louis, for defendant-respondent.

PREWITT, Judge.

Plaintiff appeals from summary judgment granted against her. On an appeal from summary judgment, this court reviews the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). The party seeking summary judgment has to show a right to judgment based on undisputed facts. Id. at 378.

Plaintiff alleged in her petition that a "temporomandibular interpositional" implant was purchased by her from defendant and placed in her person on January 6, 1987, at a hospital operated by defendant. In Count I she seeks damages based on strict liability. In Count II she seeks damages for negligence.

Defendant contends that summary judgment was proper on Count I because "[s]trict product liability does not apply to surgical implants because the hospital is not a seller within the meaning of The Restatement (2d) of Torts § 402A." It asserts its relationship with persons such as plaintiff "is primarily the rendition of professional services." Defendant says it "merely provided it [the implant] pursuant to an independent physician's direction as an integral and inseparable part of its provision of professional services."

In State ex rel. American Medical International v. Sweeney, 845 S.W.2d 648 (Mo.App.1992), this district quashed its preliminary order of prohibition and dismissed the petition seeking prohibition. In dissenting from that determination, Maus, J., believed that the petition in the underlying action should have been dismissed for failure to file the affidavit required by § 538.225, RSMo 1986. However, he also discussed the contention of relators that surgical implants sold by relator at a hospital it operated cannot be the subject of an action based on strict liability. He concludes that strict liability will lie when a hospital sells defective implants. Sweeney, 845 S.W.2d 648, 648-650 (Maus, J., dissenting). We believe that this discussion in the dissent is well reasoned, and relevant to plaintiff's contentions on Count I. We adopt as a part of this opinion the portion of the dissent discussing whether a strict liability action could lie for a hospital selling surgical implants.

We recognize that the Western District of this court in Hershley v. Brown, 655 S.W.2d 671 (Mo.App.1983), held that strict liability is not a basis for recovery against medical physicians. Whether there is a distinction between physicians and hospitals in the present context we need not decide, but believe that products liability claims should be allowed to be maintained in strict liability in tort against a seller whether or not such sales are a substantial part of its operation or business. Being incidental to the hospital's purpose, if such sale is, should not relieve it of liability any more than if a hospital sells a defective toy at its gift shop or a hairdresser sells defective hair spray which may be incidental to her other services. ¹

Moreover, a sale of a product is not required to bring an action for strict liability. Liability is imposed on those placing a product in the stream of commerce. The product need not be sold if it has been placed in the stream of commerce by other means. Com'l Distribution Ctr. v. St. Regis Paper Co., 689 S.W.2d 664 (Mo.App.1985). See also § 537.760, RSMo 1993 (defining products liability claim, as requiring a product be "transferred ... in the course of ... business"); Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244 (Mo. banc 1984) (strict liability not limited to sellers); Chubb Group of Ins. v. C.F. Murphy & Assoc., 656 S.W.2d 766 (Mo.App.1983) (products liability applies to welding steel beams if defendant "provided" the beams); Gabbard v. Stephenson's Orchard, Inc., 565 S.W.2d 753 (Mo.App.1978) (products liability applicable to orchard who "furnished" defective ladders for use by customers picking apples). But cf. Katz v. Slade, 460 S.W.2d 608 (Mo.1970) (declining to apply products liability to golf course supplying defective golf carts, distinguished in Gabbard).

In Racer v. Utterman, 629 S.W.2d 387, 398-399 (Mo.App.1981), the Eastern District of this court found that strict liability did not apply to a hospital for injuries to a patient caused by a surgical drape which caught fire because the hospital was a user of the drape rather than a seller. Its rationale does not control where as here, the article was transferred to another.

Results in other jurisdictions vary. Hector v. Cedars-Sinai Medical Center, 180 Cal.App.3d 493, 225 Cal.Rptr. 595 (1986), determined that a products liability action would not lie against a hospital which transferred a pacemaker as it is a provider of services rather than the seller of a product. 225 Cal.Rptr. at 600. Of course, an entity obviously can do both as the California Supreme Court recognized in Murphy v. E.R. Squibb & Sons, 40 Cal.3d 672, 221 Cal.Rptr. 447, 451, 710 P.2d 247, 251 (1985).

Cafazzo v. Central Medical Health Services, 430 Pa.Super. 480, 635 A.2d 151 (1993), refused to find a hospital strictly liable for a defective implant, concluding "a hospital not involved in the development or manufacture of the product is in no better position to prevent circulation of a defective product." 635 A.2d at 154. That would be true, however, as to most products sold by retailers.

In Greenberg v. Michael Reese Hospital, 83 Ill.2d 282, 47 Ill.Dec. 385, 388, 415 N.E.2d 390, 393 (1980), the court noted that it is a distortion to take what is a sale and turn it into a service, perhaps to reach the desired result. See also Cunningham v. MacNeal Memorial Hospital, 47 Ill.2d 443, 266 N.E.2d 897 (1970); Russell v. Community Blood Bank, 185 So.2d 749 (Fla.App.1966), aff'd as modified 196 So.2d 115 (Fla.1967). The court said in Greenberg, 47 Ill.Dec. at 389, 415 N.E.2d at 394:

"In cases involving goods and other tangible physical materials which are in some way bad, imposition of liability unquestionably enhances the public interest in human life and health. However, in cases which deal with the conduct of individuals or institutions which themselves are pledged to protect human life and health, precautions must be taken to avoid an ultimate diminution of protection."

Here, plaintiff in effect attacks the implant itself rather than any conduct of the hospital in its selection or handling. We cannot say that the record establishes that plaintiff is making a veiled malpractice claim. The hospital's account of the limited nature of its role in the decision making process surrounding the selection and use of the implant suggests no professional conduct of the hospital is being questioned by plaintiff directly or indirectly, as may have been the case in Hershley. In this situation we conclude that the sales aspect of the transaction may predominate over the service aspect and the policy of strict liability in tort is served by allowing this action.

Neither the policy of strict liability in tort as adopted by our Supreme Court nor as defined by the Missouri legislature reflect an indication that health care providers are to be excepted. Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo.1969), adopted strict liability in tort as stated in 2 RESTATEMENT, LAW OF TORTS, SECOND, § 402A. The court stated strict liability in tort insures that costs due to injury resulting from defective products are borne by manufacturers and sellers rather than by persons powerless to protect themselves. 445 S.W.2d at 364.

The legislature in 1987, effective July 1, 1987, enacted § 537.760, defining products liability claims. Although enacted well after significant publicity regarding malpractice claims, it has no exception for health care providers. When a statute "admits of no exception ... the Court should not engraft one by judicial legislation." Poling v. Moitra, 717 S.W.2d 520, 522 (Mo. banc 1986). Section 537.760 is set forth marginally. ²

For this court to deny plaintiff's claim on Count I, it would create an exception for hospitals and perhaps other health care providers. This is contrary to the purposes of strict liability and products liability claims as defined by the legislature. We decline to do so.

Defendant next claims that both counts were properly denied "in that plaintiff's petition was filed outside the applicable statute of limitations, § 516.015, [apparently intending § 516.105] RSMO 1986." Section 516.105 is set forth marginally. ³

The legislative intent in enacting a statute is to be determined from the language used and those words are construed in their plain and ordinary meaning. Matter of A-- F--, 760 S.W.2d 916, 918 (Mo.App.1988). Words and phrases having a technical meaning, however, are to be applied in their technical sense, unless it appears they were intended to be used otherwise. City of St. Louis v. Triangle Fuel Co, 193 S.W.2d 914, 915 (Mo.App.1946). Technical words are those which pertain to the arts, science, business, profession, sports or the like. Rathjen v. Reorganized School District R-II, 365 Mo. 518, 284 S.W.2d 516, 523 (banc 1955).

Plaintiff contends that her claim is not barred by § 516.105 because that statute "is not applicable to strict liability claims not asserting malpractice or negligence against the health care provider." She contends that her "suit is a strict products liability action...