Brody v. Overlook Hospital
| Decision Date | 13 November 1972 |
| Citation | 296 A.2d 668,121 N.J.Super. 299 |
| Parties | Sarah BRODY, executrix of the estate of Eugene Brody, deceased and Sarah Brody, individually, Plaintiff, v. OVERLOOK HOSPITAL et al., Defendants. ESSEX COUNTY BLOOD BANK, a corporation of the State of New Jersey, Defendant- Third Party Plaintiff, v. EASTERN BLOOD BANK, a corporation of the State of New Jersey, Third Party Defendant. . Law Division |
| Court | New Jersey Superior Court |
Ira J. Zarin, Newark, for plaintiff (Zarin, Maran, Lieb & Schneider, Newark, attorneys).
Eugene M. Purcell, Union, for defendant Eastern Blood Bank.
William P. Ries, Newark, for defendants Benjamin, Erdman and Overlook Hospital.
Henry Spielvogel, Livingston, for defendant Cavallaro (Morgan, Melhuish, Monaghan, McCoid & Spielvogel, Livingston, attorneys).
John B. Stone, Jr., Elizabeth, for defendant Essex County Blood Bank (Ryan, Saros, Davis & Stone, Elizabeth, attorneys).
STEINBRUGGE, J.D.C., Temporarily Assigned.
This is an action by Sarah Brody, individually and as executrix of the estate of Eugene Brody, against a hospital, two blood banks, two doctors and a medical technician, to recover damages for the death, by serum hepatitis infection of the blood, of plaintiff's late husband, Eugene Brody. The essential facts are not in dispute. Eugene Brody was duly admitted as a paying patient to Overlook Hospital and there received, upon the advice of his physician Cavallaro, a number of blood transfusions. It is alleged that Brody subsequently developed hepatitis; it is uncontroverted that he shortly thereafter expired.
There are several counts to the amended complaint. The first sets forth a cause of action grounded in negligence by each named defendant individually under the Wrongful Death Act, N.J.S.A. 2A:31--1 et seq. The second sets forth a cause of action accruing to plaintiff by reason of pain and suffering endured by decedent. The third count sets out plaintiff's loss of consortium and of services, and the fourth count alleges that defendant hospital (hereafter 'Overlook' or 'the hospital') breached implied warranties of merchantability and of fitness for particular purpose, by providing decedent with hepatitis-infected blood which ultimately, it is alleged, caused his death. The fifth and sixth counts are against the blood banks and sound in negligence; the seventh and eighth counts, also against the blood banks, sound in breach of warranty.
The court holds the following:
(1) Suit against defendant Cavallaro (alleged to be decedent's attending physician), against defendant Erdman (alleged to be medical director of overlook's blood bank), and against defendant Benjamin (alleged to be the Overlook medical technologist is charge of blood for transfusion) will come on to the jury on the theory of negligence. The court intimates no opinion as to whether either of the hospital's two employees, or both of them, would be liable to plaintiff under a theory of strict tort liability or under a theory of breach of implied warranties under the Uniform Commercial Code, because no allegations to this effect have been made by plaintiff.
(2) (A) If the jury finds that serum hepatitis virus was in the blood transfused into decedent under the supervision of Overlook Hospital, and that decedent died as a result of hepatitis, then strict tort liability must be applied to Overlook Hospital.
(B) N.J.S.A. 2A:53A--8 applies only to negligence actions and has no apparent applicability to actions sounding in strict liability. Therefore the amount of damages recoverable is not restricted to the statutory limit.
(3) If the jury finds that decedent died of viral hepatitis, due to contaminated blood at any time under the control of Eastern Blood Bank, the theory of strict tort liability shall apply.
(4) (A) If the jury finds that decedent died of viral hepatitis, due to contaminated blood at any time under the control of Essex County Blood Bank, the theory of strict tort liability shall apply.
(B) N.J.S.A. 2A:53A--7 applies only to negligence actions and has no apparent applicability to actions sounding in strict liability.
The case at bar presents in starkest relief the issue of what measurement of liability should attach to a hospital when hepatitis-infected blood is transfused to a patient under the hospital's care and suvervision. The question usually is seen to turn on whether the blood is perceived to be a 'product' or 'goods' sold to the patient, or whether the blood is merely part and parcel of the 'services' supplied by the hospital to the patient. 1 If blood is considered a 'product' then, under the Uniform Commercial Code, theories of breach of the warranties of merchantability, N.J.S.A. 12A--2--314, and of fitness for particular use, N.J.S.A. 12A--2--315, are applicable. Equally as applicable is the theory of strict tort liability, I.e., liability on the part of the supplier whether or not the supplier was at fault, as expressed in Restatement 2d, Torts, § 402A:
(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 to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to reach the user or consumer in the condition in which it is sold. (2) The rule stated in subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
On the other hand, if the hospital's provision of infected blood is considered a 'service,' then a negligence action alone against the hospital will be maintainable.
The leading authority for the proposition that a paying patient at a hospital who receives impure or infected blood is the recipient of a service and not of a sale of goods, and therefore cannot recover on theories either of breach of warranty or of strict tort liability, is Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 (1954). This decision by the New York Court of Appeals has had an extremely wide-ranging impact, and until recently was considered the definitive treatment of the subject. 2
But much has changed since 1954 in the operation of hospitals and the legal principles pertaining thereto. Two recent decisions hold that recovery is possible, on a nonnegligence basis, by a patient who receives hepatitis infected blood during his course of treatment at a hospital. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970), a decision of the Pennsylvania Supreme Court, held that, regardless of whether it was ultimately held that the transfer of blood from defendant-hospital for transfusion into the plaintiff-patient was a 'service' or the supplying of a 'product,' recovery May be permissible on a claim that the hospital breached warranties of merchantability and/or fitness of particular purpose under the Uniform Commercial Code. Cunningham v. MacNeal Memorial Hospital, 266 N.E.2d 897 (Ill.Sup.Ct.1970) held that blood is a 'product' to which the doctrine of strict tort liability is applicable when supplied by a hospital for treatment of a patient's condition. Cunningham rejected the analysis of Perlmutter and held the hospital to strict liability for injuries suffered by a patient who received hepatitis-infected blood. In doing so, the Illinois Supreme Court adopted the views that (1) blood Is a 'product' within the meaning of Restatement 2d, Torts, § 402A; (2) the product was 'sold,' and (3) the blood Was 'in a defective condition unreasonably dangerous to the user.' The court rejected the notion that the imposition of strict liability would hamper a hospital's performance of its primary function:
We do not believe in this present day and age, when the operation of eleemosynary hospitals constitutes one of the biggest businesses in this country, that hospital immunity can be justified on the protection-of-the-funds theory. (266 N.E.2d at 904)
However, neither Perlmutter, Hoffman, nor Cunningham addressed themselves to any sound Policy reasons for extending the doctrine of strict liability to hepatitis cases. Perlmutter dealt only with the semantic question of whether the transaction (the blood transfusion) was a 'sale' or a 'service;' Hoffman recognized the problem; Cunningham dealt only with the verbal formula of § 402A. 3
But policy considerations are of the utmost importance. 4 Justice Traynor of the California Supreme Court put the idea well when he said,
Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. (Escola v. Coca Cola Bottling Company, 24 Cal.2d 453, 150 P.2d 436 (1944), at 440--441.)
This theory has the effect of forcing the entity that markets the product to consider the 'accident costs' of the product 5 when deciding whether and from where to procure it. In the case of blood, the 'safety rationale' emphatically applies to hospitals because, as a general rule, each hospital has a choice of several blood banks as potential suppliers. 6 The blood banks stand in the same position to the hospital as the manufacturer of a product does to a distributer--as supplier to marketer. It can be anticipated that adoption of the strict liability standard for the State of New Jersey will have the beneficial effect of forcing hospitals to deal only with those blood banks which have good safety records, thus decreasing the risk of a patient's becoming infected with hepatitis as a result of a transfusion.
Even in the comparatively low...
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