Brody v. Overlook Hospital

• Decision Date: 26 March 1974
• Citation: 317 A.2d 392,127 N.J.Super. 331
• Parties: Sarah BRODY, Executrix of the Estate of Eugene Brody, Deceased, and Sarah Brody, individually, Plaintiff-Respondent, v. OVERLOOK HOSPITAL, a corporation of the State of New Jersey, and Essex County Blood Bank, Defendants-Appellants, and Bernard Erdman et al., Defendants, and William U. Cavallaro, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 331

127 N.J.Super. 331

317 A.2d 392

Sarah BRODY, Executrix of the Estate of Eugene Brody Deceased, and Sarah Brody, individually Plaintiff-Respondent, v. OVERLOOK HOSPITAL, a corporation of the State of New Jersey and Essex County Blood Bank, Defendants-Appellants and Bernard Erdman et al., Defendants, and William U. Cavallaro, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Dec. 19, 1973.

Decided March 26, 1974.

Bartholomew A. Longo, Newark, for defendant-appellant Essex County Blood Bank (Ryan, Saros, Davis & Stone, Elizabeth, attorneys).

William P. Ries, Maplewood, for defendant-appellant Overlook Hospital.

Ira J. Zarin, Newark, for plaintiff-respondent Brody (Zarin & Maran, Newark, attorneys).

Robert J. C. McCoid, Livingston, for defendant-respondent Cavallaro (Morgan, Melhuish, Monaghan, McCoid & Spielvogel, Livingston, attorneys; Henry Spielvogel, Livingston, of counsel).

An amicus curiae brief was filed on behalf of New Jersey Hospital Ass'n by McCarter & English, Newark, attorneys (Woodruff J. English and Eugene M. Haring, Newark, of counsel; Frederick B. Lehlbach, Newark, on the brief).

An amicus curiae brief was filed on behalf of New Jersey Blood Bank Ass'n by Shanley & Fisher, Newark, attorneys (John J. Francis, Jr., Newark, of counsel; Albert L. Strunk, III, Newark, on the brief).

Before Judges LEONARD, ALLCORN and CRAHAY.

The opinion of the court was delivered by

LEONARD, P.J.A.D.

Defendants Overlook Hospital (Overlook) and Essex County Blood Bank (County Blood Bank), with leave first granted, appeal from a judgment as to liability only, entered upon a jury verdict against them and in favor of plaintiff.

On December 18, 1966 decedent Eugene Brody was admitted to Overlook for the treatment of a severely comminuted fracture of his right femur. On the same day defendant William U. Cavallaro, an orthopedic specialist, performed an open reduction. At the doctor's order two pints of blood were transfused during the operation and one pint post-operatively. Two of the pints of blood were obtained from the hospital's blood bank and one pint from the County Blood Bank. Brody was discharged on February 1, 1967.

On February 14, 1967 he was re-admitted to Overlook with a final diagnosis of 'serum hepatitis secondary to blood transfusion in December, 1966 with shock and renal failure.' Three days later he was transferred to Mt. Sinai Hospital in New York for an exchange transfusion and expired there the next day.

On February 10, 1969 plaintiff filed her complaint as executrix of the estate of her deceased husband and in her own right against defendants Overlook County Blood Bank, Dr. Cavallaro and others (not presently involved in this appeal), charging them with negligence and breach of warranty.

On the day fixed for trial the trial judge first rendered a 'Decision' (reported at 121 N.J.Super. 299, 296 A.2d 668) which determined, among other things, that if the jury found that decedent died of viral hepatitis due to contaminated blood supplied by the hospital and County Blood Bank, the theory of strict liability would apply to these two defendants. Thereupon, the matter was tried with a jury on the issue of liability alone and was submitted upon the following special interrogatories and instructions:

1. Was serum hepatitis communicated to the decedent, Eugene Brody, by virtue of blood transfused into him at the Overlook Hospital in December of 1966?

2. If the answer to number 1 is 'no' then you will go no further but will return a verdict of no liability.

3. If the answer to number 1 is 'yes,' then did this contaminated blood proximately cause the death of the decedent, Eugene Brody?

4. If the answers to 1 and 3 are 'yes,' then you will return a verdict that the defendants Overlook Hospital and Essex County Blood Bank are liable.

The jury unanimously answered 1 and 3 in the affirmative and accordingly rendered a verdict holding the hospital and County Blood Bank liable to plaintiff.

The primary question to be resolved is whether, under the circumstances existing herein, the trial judge properly applied the doctrine of strict liability to these two defendants.

Preliminarily, it is to be noted that in arriving at the answer to the foregoing question we do not find it necessary to resolve the issue of whether the transfer of blood in the instant case was a sale or a service. But see, Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 (Ct.App.1954). If it is otherwise determined that the basic policy considerations which lead to the application of the doctrine of strict liability are here present, that doctrine will be applied regardless of whether such activity by either defendant be characterized as a sale or a service. See Newmark v. Gimbel's Inc., 54 N.J. 585, 593--595, 258 A.2d 697 (1969); Cintrone v. Hertz Truck Leasing, etc., 45 N.J. 434, 446, 212 A.2d 769 (1965); Jackson v. Muhlenberg Hosp., 96 N.J.Super. 314, 324, 232 A.2d 879 (Law Div.1967), rev'd on other grounds, 53 N.J. 138, 249 A.2d 65 (1969); Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867, 870--871 (Sup.Ct.1970).

Thus, we turn to ascertaining whether those basic policy considerations are here present. Recently, in this State, in our rapidly expanding commercial society, the doctrine of strict liability has been applied to the manufacturers and suppliers of mass-produced products (automobiles, carpeting, homes and motorcycles) who have placed these products in the stream of trade and promoted their purchase by members of the public through the use of large scale advertising programs in and on all existing media of communication. Cintrone v. Hertz Truck Leasing, etc., 45 N.J. 434, 212 A.2d 769 (1965); Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965); Santor v. A. & M. Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); Sabloff v. Yamaha Motor Co., Ltd., 113 N.J.Super. 279, 273 A.2d 606 (App.Div.1971), aff'd 59 N.J. 365, 283 A.2d 321 (1971). The policy consideration which makes those manufacturers strictly liable in tort for harm caused by defective products is well stated by the court in Santor, supra, as follows:

Such doctrine stems from the reality of the relationship between manufacturers of products and the consuming public to whom the products are offered for sale * * *. (W)hen the manufacturer presents his goods to the public for sale he accompanies them with a representation that they are suitable and safe for the intended use. * * * (S)uch representation must be regarded as implicit in their presence on the market. * * *. The obligation of the manufacturer thus becomes what in justice it ought to be--an enterprise liability. * * *.

The purpose of such liability is to insure that the cost of injuries or damage * * *, resulting from defective products, is borne by the makers of the products who put them in the channels of trade, rather than by the injured or damaged persons who ordinarily are powerless to protect themselves. (44 N.J. at 64--65, 207 A.2d at 311)

See also Henningsen, supra at 384 of 32 N.J., 161 A.2d 69; Schipper, supra at 90 of 44 N.J., 207 A.id 314 and Cintrone, supra at 446 of 45 N.J., 212 A.2d 769.

Here the relationship between the hospital and County Blood Bank and decedent was the antithesis of a commercial enterprise. Overlook is a private, nonprofit institution, and County Blood Bank is a charitable, voluntary organization. The former charged $50 a pint for the blood, $25 of which was a service charge for typing, cross-matching and all operations pertaining to its own blood bank; and the remaining $25 was a refundable credit when the blood was replaced in its blood bank on behalf of the patient. The latter, in turn furnished the pint of blood to the hospital, free of charge, except for testing costs.

As previously noted, the blood was administered upon the orders of decedent's orthopedic specialist. He was of the opinion that the blood was needed during the operation because of decedent's pre-existing medical problems, and post-operatively by reason of the patient's falling blood pressure and rising pulse rate, to prevent 'irreversible shock.'

In this case the experts for both sides all agreed that in December 1966 (when the blood was transfused) there was no known scientific or medical test for determining whether blood drawn from a donor contained serum hepatitis virus. ¹ Further, Dr. Robert Goodman, a pathologist and medical director of County Blood Bank, testified that as of that date the overall incidence of transfusion hepatitis was 'about 1.3 in a hundred cases transfused' and that 'the carrier rate, the people who remain with residual virus after infection, is five percent.' This testimony was uncontroverted.

Under these circumstances, the following language of the court in Newmark v. Gimbel's, Inc., Supra, at 596--597, 258 A.2d at 702, is most appropriate:

Defendants suggest that there is no doctrinal basis for distinguishing the services rendered by a beauty parlor operator from those rendered by a dentist or a doctor, and that consequently the liability of all three should be tested by the same principles. On the contrary there is a vast difference in the relationships. The beautician is engaged in a commercial enterprise; the dentist and doctor in a profession. The former caters publicly not to a need but to a form of aesthetic convenience or luxury, involving the rendition of non-professional services and the application of products for which a charge is made. The dentist or doctor does not and cannot advertise for patients; the demand for his services stems from a felt necessity of the patient. In response to such a call the doctor, and to a somewhat lesser degree the dentist, exercises his best judgment in diagnosing the patient's ailment or disability, prescribing and sometimes furnishing medicines...