Carter v. Inter-Faith Hospital of Queens, INTER-FAITH

• Decision Date: 02 September 1969
• Docket Number: INTER-FAITH
• Citation: 304 N.Y.S.2d 97,60 Misc.2d 733
• Parties: , 6 UCC Rep.Serv. 906 Elizabeth CARTER, Plaintiff v.HOSPITAL OF QUEENS et al., Defendants.
• Court: New York Supreme Court

Page 97

304 N.Y.S.2d 97

60 Misc.2d 733, 6 UCC Rep.Serv. 906

Elizabeth CARTER, Plaintiff v. INTER-FAITH HOSPITAL OF QUEENS et al., Defendants.

Supreme Court, Special Term, Queens County, Part I.

Sept. 2, 1969.

Starkman & Fine New York City, for plaintiff.

Sidney L. Katz, New York City, for defendant Inter-Faith Hospital.

William Doblin, New York City, for defendant National Blood Bank, Inc.

MEMORANDUM

DANIEL E. FITZPATRICK, Justice.

In an action to recover damages for injuries suffered because of the alleged negligence and breach of warranty by defendants, defendant National Blood Bank, Inc. moves for summary judgment and defendant Inter-Faith Hospital of Queens (Hospital) moves pursuant to CPLR 3211(a)(7) to dismiss the second cause of action for breach of warranty.

During the latter part of May and the early part of June, 1965, plaintiff was a patient in defendant hospital. While there, plaintiff received blood transfusions, bearing lot numbers 72032 and Y6858, and thereafter became afflicted with hepatitis allegedly caused by said transfusions. It is further alleged that these particular lots of blood were purchased by the hospital from defendant National Blood Bank, Inc. Plaintiff now seeks to recover damages against both defendants on the theory of negligence and of breach of implied and express warranty.

In regard to the motion by defendant hospital, the law in New York is that hospitals are not liable for breach of implied or express warranties of fitness and merchantability where a patient becomes afflicted with serum hepatitis as a result of a transfusion of 'bad' blood. (Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792; Payton v. Brooklyn Hospital, 21 A.D.2d 898, 252 N.Y.S.2d 419, affd. 19 N.Y.2d 610, 278 N.Y.S.2d 398, 224 N.E.2d 891.) In Perlmutter, the Court of Appeals denied recovery for breach of implied warranty, holding that the transfusion of blood by a hospital to a patient constituted a 'service' rather than a sale of goods and that warranties are limited to sales of goods and did not attach to performance of a service. (See also, Aegis Productions, Inc. v. Arriflex Corporation of America 25 A.D.2d 639, 268 N.Y.S.2d 185.) The Court of Appeals in affirming Payton, has applied the same reasoning to the denial of recovery based upon breach of express warranty. (Contra Napoli v. St. Peter's Hospital, Sup., 213 N.Y.S.2d 6.)

Concerning the motion by defendant National Blood Bank, Inc. for summary judgment, although on such a motion the court does not test the sufficiency of the complaint, it does look at all proof offered to determine whether the causes of action have merit. (CPLR 3212(b).) Although defendant blood bank would be liable for negligence if proven, there is a question whether said defendant can be held liable for breach of implied or express warranty.

The issue to be determined, therefore, is whether a commercial blood bank is liable for breach of warranty where it has transferred blood to a hospital for consideration and where that blood is later used in a transfusion and causes the patient to be afflicted with serum hepatitis.

In Krom v. Sharp & Dohme, 7 A.D.2d 761, 180 N.Y.S.2d 99, rearg. den. 14 A.D.2d 458, 218 N.Y.S.2d 587, plaintiff brought an action against a blood bank for breach of warranty alleging that the hospital in making the purchase from defendant, did so as the patient's agent. The court determined that the hospital was not acting as plaintiff's agent in the purchase of the blood and that no cause of action for breach of warranty existed between the parties. In the more recent case of Heitner v. City of New York, N.Y.L.J., July 9th, 1968, p. 12, col. 2, where the plaintiff brought an action for breach of warranty against a commercial blood bank, the court dismissed the complaint stating that Krom extended the rule in Perlmutter to commercial suppliers to the effect that supplying of blood as part of treatment was not a 'sale'. The court held that even if there was a distinction between a hospital and commercial blood bank, the complaint must be dismissed since there exists no means of detecting the presence of injury causing factors contained in blood and thus plaintiff's claim is incapable of proof. The decision in Heitner fails to take into account that liability in warranty does not depend upon proof of negligence and lack of knowledge of the defect or how to discover it is irrelevant. (Blessington v. McCrory Stores Corp., 305 N.Y. 140, 111 N.E.2d 421, 37 A.L.R.2d 698; Foley v. Liggett & Myers Tobacco Company, 136 Misc. 468, 241 N.Y.S. 233, affd. 232 App.Div. 822, 249 N.Y.S. 924; 2 Frumer & Freeman Products Liability, §§ 16.01(1), 19.01(3).) Furthermore, this court does not agree that Krom extended the rule of Perlmutter, but is of the opinion that it held that the hospital was not the patient's agent so that he might sue for breach of warranty. It is this court's belief that even if Krom did extend the Perlmutter rule, it would be incorrect. The basis of the Perlmutter decision was that the supplying of blood by a hospital to a patient is incidental to the services rendered and is not a sale. In the instant situation, we have solely a transfer of blood and no services are rendered by the blood bank to the hospital.

There thus seems to be no New York authority on this precise issue and the court must look to the decisions in other jurisdictions. In Balkowitsch v. Minneapolis War Memorial Blood Bank, 270 Minn. 151, 132 N.W.2d 805, the court held that the transaction between a noncommercial blood bank and a hospital was not a sale. That decision, however, was based on the reasoning that a non-profit corporation should be treated no differently than a hospital and should not be characterized as a commercial business which offers its products for sale in the market. (See also Whitehurst v. American Nat'l. Red Cross, 1 Ariz.App. 326, 402 P.2d 584.)

In Florida, the courts have followed Perlmutter and have held that the supply of blood by a hospital to a patient constitutes a service rather than a sale. (White v. Sarasota County Public Hospital Bd., Fla.App., 206 So.2d 19, cert. den. Fla., 211 So.2d 215.) They have also held that where a commercial blood bank has supplied blood to a patient for a consideration, it has made a 'sale', and there may be a cause of action against it for breach of warranty. (Community Blood Bank, Inc. v. Russell, Fla., 196 So.2d 115.)

In the recent New Jersey case of Jackson v. Muhlenberg Hospital, 53 N.J. 138, 249 A.2d 65, the Supreme Court of New Jersey deemed the issue of whether a cause of action for breach of warranty exists against commercial blood banks to be of the utmost importance involving highly significant policy considerations. The court set aside the partial summary judgment granted by the lower court dismissing the cause of action for breach of warranty and strict liability and decided that the matter should proceed to trial where 'a complete record should be made, including not only detailed testimony as to the nature of the defendants' operations, but also expert testimony as to the availability of any tests to ascertain the presence of viral hepatitis in blood, the respective incidences of hepatitis in blood received from commercial blood banks and other sources, and such other available testimony and materials as may be relevant to any of the questions presented by the parties, including...