Bingham v. Lutheran General and Deaconess Hospitals

• Decision Date: 04 December 1975
• Docket Number: No. 61393,61393
• Citation: 34 Ill.App.3d 562,340 N.E.2d 220
• Parties: , 18 UCC Rep.Serv. 890 Beate BINGHAM, executor of the Estate of Robert H. Bingham, Deceased, Plaintiff-Appellant, v. LUTHERAN GENERAL & DEACONESS HOSPITALS, a corporation, d/b/a Lutheran General Hospital and Lutheran General Hospital, a corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 220

340 N.E.2d 220

34 Ill.App.3d 562, 18 UCC Rep.Serv. 890

Beate BINGHAM, executor of the Estate of Robert H. Bingham Deceased, Plaintiff-Appellant, v. LUTHERAN GENERAL & DEACONESS HOSPITALS, a corporation, d/b/a Lutheran General Hospital and Lutheran General Hospital, a corporation, Defendants-Appellees.

No. 61393.

Appellate Court of Illinois, First District, Third Division.

Dec. 4, 1975.

Berkson, Gorov & Levin, Arthur M. Gorov, Robert D. Michaels, Chicago, for plaintiff-appellant.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, D. Kendall Griffith, John C. Langhenry, Jr., Stanley J. Davidson, Chicago, for defendants-appellees.

DEMPSEY, Justice:

The plaintiff, Beate Bingham, executor of the estate of Robert Bingham, filed a twelve count, wrongful-death and survivalaction complaint against the defendant, the Lutheran General and Deaconess Hospitals, which had provided blood transfusions and related medical services to the deceased who was a patient at the hospital immediately prior to his death. Counts III and IV alleged that the hospital had breached warranties of merchantability and fitness by supplying him blood which contained hepatitis virus and Counts VII and VIII alleged that it was strictly liable in tort for injecting into his body blood contaminated by the same virus.

The hospital filed a motion to dismiss these counts on the ground that recovery was barred by the Act relating to liability for the 'Use of Human Blood, Organs or Tissues' which provides that the furnishing of blood is a service and not a sale, and that its legal liability was therefore limited to instances where the plaintiff could prove that it was guilty of negligence or willful misconduct. Ill.Rev.Stat., 1971, ch. 91, pars. 181--184.

The plaintiff filed a reply to the motion asserting that the Act violated the equal protection clause of the United States and Illinois constitutions (U.S.Const., amend. XIV, sec. 1) Ill.Const. art. I, sec. 2 (1970), and the provision in the Illinois constitution (section 13, article 4) which prohibits 'special legislation.'

The trial court sustained the motion to dismiss the four counts and the plaintiff appeals, the court having held that there was no just reason for delaying an appeal.

Section 182 of the Act provides:

'The procuring, furnishing, donating, processing, distributing or using human whole blood, plasma, blood products, blood derivatives and products, corneas, bones, or organs or other human tissue for the purpose of injecting, transfusing or transplanting any of them in the human body is declared for purpose of liability in tort or contract to be the rendition of a service by every person, firm or corporation participating therein, whether or not any remuneration is paid therefor, and is declared not to be a sale of any such items and no warranties of any kind or description nor strict tort liability shall be applicable thereto, except as provided in Section 3.'

The contentions raised by the plaintiff in this appeal were before this court in Glass v. Ingalls Memorial Hospital (1975), Ill.App., 336 N.E.2d 495. In Glass, where the trial court dismissed a complaint which contained counts identical to the ones in the present case, we upheld the constitutionality of the Act and in doing so stated:

'We do not believe that the granting of a statutory exemption to the distributors of human tissue for the purpose of injection, transfusion and the like from the general rule holding merchants and manufacturers strictly liable in tort for defects in their products to be unreasonable or arbitrary. We therefore hold that Sections 181 et seq. are not violative of the constitutional proscription on special legislation and, accordingly, affirm the judgment entered below dismissing plaintiff's complaint.'

In response to this decision, with which we concur, ...