Cunningham v. MacNeal Memorial Hospital

• Decision Date: 08 July 1969
• Docket Number: Gen. No. 51893
• Citation: 113 Ill.App.2d 74,251 N.E.2d 733
• Parties: Mrs. Frances CUNNINGHAM, Plaintiff-Appellant, v. MacNEAL MEMORIAL HOSPITAL, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 733

251 N.E.2d 733

113 Ill.App.2d 74

Mrs. Frances CUNNINGHAM, Plaintiff-Appellant, v. MacNEAL MEMORIAL HOSPITAL, Defendant-Appellee.

Gen. No. 51893.

Appellate Court of Illinois, First District, Second Division.

July 8, 1969.

Rehearing Denied Aug. 5, 1969.

Horwitz, Anesi & Ozmon, Chicago, Dario A. Garibaldi, Flossmoor, of counsel, for plaintiff-appellant.

Howard, French p Healy, Chicago, John C. Healy, Chicago, of counsel, for appellee.

McCORMICK, Justice.

The plaintiff, Mrs. Frances Cunningham, was admitted to MacNeal Memorial Hospital in May 1960. While there she received several transfusions of whole blood and was infected with serum hepatitis, requiring that she have additional hospitalization.

The plaintiff filed a complaint praying for judgment in the sum of '$50,000.00 or such greater or lesser sum as the court or jury may award.' On October 14, 1966, a second amended complaint was filed, the one with which we are concerned. In that complaint the plaintiff made the following allegations, among others:

'That the defendant, MacNeal Memorial Hospital as ancillary to the services rendered to the plaintiff sold and supplied her blood for the purposes of transfusion in the treatment of her condition. * * *

'That the defendant, MacNeal Memorial Hospital, in selling and supplying, had a duty to process and distribute the blood that was used in the transfusion of the plaintiff so that it was not defective and did not become unreasonably dangerous when put to the use for which it was processed, sold and distributed.

'That the blood sold and supplied by the defendant, * * * was defective and in an unreasonably dangerous condition and was in such condition at the time that it left the hands of the defendant, * * *

'That as a direct and proximate result of the defective and unreasonably dangerous condition of the blood that was used in the plaintiff's transfusion, the plaintiff then and there was caused to and did contract serum hepatitis.

'The plaintiff at no time had any knowledge of the defective condition of the blood and was at all times herein mentioned in the exercise of due care and caution for her own safety.

'That, as a direct and proximate result therefor, the plaintiff was caused to require further hospitalization and seek further medical attention, and caused her to suffer great pain and discomfort and that she was required to and did lose long periods of time from her employment resulting in a loss of wages and income and that it is believed that her disability and condition were and are permanent in nature.'

The defendant did not file an answer to the complaint; instead, it filed a motion for judgment on the primary ground that the plaintiff was erroneously seeking to state a cause of action 'against this defendant upon the theory that blood is a product, that such product was furnished in a defective and unreasonably dangerous condition and that by reason thereof defendant is strictly liable to plaintiff for her alleged damages.' The motion was presented on October 14, 1966, on which date the trial court entered and order stating:

'It is further ordered that defendant's motion for judgment on the pleadings be and it is allowed; and, that judgment be and it is hereby entered in favor of defendant herein; * * *'

The plaintiff filed a notice of appeal in which she requested that the order and judgment be set aside or reversed and that the defendant be ordered to answer plaintiff's second amended complaint, and that the cause be ordered to be set for trial.

The question before this court is whether or not the doctrine of strict tort liability, as laid down in Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965), is applicable. The defendant contends that whole human blood is not a product, nor can it be the subject of a sale; and that the hospital, through its agents, merely performs a service in giving a blood transfusion.

In defendant's brief it is noted that 'none of the (blood) cases attaches liability or indicates the potential attachment of liability to a hospital for the furnishing of blood, * * *' While it may be true that no case has directly attached liability to a hospital for the 'furnishing of blood,' we cannot agree that none of the cases had indicated the potential attachment of such liability.

It is, of couse, evident to any thinking person that with advanced scientific knowledge our daily lives are considerably changed and the law also changes to cope with such advancement. As early as Wiedeman v. Keller, 171 Ill. 93, 49 N.E. 210, our Supreme Court indicated in strong terminology its preference for imposing liability on retailers selling unwholesome meat, whether they were aware of its unwholesome condition or not. In that case Henry Keller, the defendant, was in the business of buying and selling meats and other foods at retail prices for domestic use. Although the court spoke in terms of implied warranty it would appear that the most important point in the case is that the warranty's support was seen to be in public policy. The following language from that opinion (page 99, 49 N.E. page 211) is relevant to the case before us:

'In an ordinary sale of goods, the rule of Caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious, and may prove so disastrous to the health and life of the consumer, that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound, and fit for the use for which it was purchased. It may be said that the rule is a harsh one, but, as a general rule, in the sale of provisions the vendor has so many more facilities for ascertaining the soundness or unsoundness of the article offered for sale, which are not possessed by the purchaser, that it is much safer to hold the vendor liable than it would be to compel the purchaser to assume the risk.'

In the instant case the defendant's brief cites a number of cases and states that the reason for citing them is that 'they have certain factors inextricably common to any case predicated upon strict tort liability. One of these factors is whether or not there has been a sale, within the meaning of the law, by the defendant to the plaintiff. Certain of these cases make a distinction between the furnishing of blood by a hospital and the furnishing of blood by a blood bank. However, none of the cases attaches liability or indicates the potential attachment of liability to a hospital for the furnishing of blood, * * *' The defendant asserts that no liability can attach to it since nothing has been purchased. We feel that this conclusion is too simple and that to maintain an artifical barrier around blood is not sensible.

The first case which imposed strict tort liability in Illinois was Suvada v. White Motor Co., Supra, in which the Illinois Supreme Court pointed out that Illinois law does not require a showing of privity of contract for one to maintain an action for breach of implied warranty; and the court further held that the rule of privity of contract is not applicable, stating at page 617, of 32 Ill.2d, at page 185 of 210 N.E.2d:

'As early as 1847 this court approved of the holding in Van Bracklin v. Fonda, (N.Y.1815) 12 Johns. 468, 7 Am.Dec. 339, that there is an implied warranty (strict liability) in the sale of food. (Misner v. Granger, 4 Gilman 69.) Dean Prosser has traced the theory of strict liability in the sale of food to the year 1431. (Prosser, Assault on the Citadel, 69 Yale L.J. 1099.)'

The court cited and quoted from Wiedeman v. Keller, 171 Ill. 93, 49 N.E. 210, and further pointed out that actions for breach of warranty in a food case by a party not in privity with the seller or the manufacturer are sanctioned on the ground that the implied warranty of the manufacturer or seller runs with the sale of the article. At page 618 of 32 Ill.2d at page 185 of 210 N.E.2d the court in Suvada quoted from Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 617, 164 S.W.2d 828, 831--832, 142 A.L.R. 1479, that 'Here the liability of the manufacturer and vendor (of food) is imposed by operation of law as a matter of public policy for the protection of the public, and is not dependent on any provision of the contract, either expressed or implied.' At page 619 of 32 Ill.2d, at page 186 of 210 N.E.2d the court in Suvada stated: 'The losses caused by unwholesome food should be borne by those who have created the risk and reaped the profit by placing the product in the stream of commerce.'

Suvada is a landmark case in Illinois law, and while it is true that the question actually decided in it was one of strict liability with reference to an action brought on account of a defective brake system for a tractor, nevertheless, the import of the decision lies in the fact that the court openly laid down the rule that liability was based, not on warranty, but rather on public policy.

It would appear that the real reason some would refrain from calling human blood a product is the belief that those dealing in it are doctors, hospitals and blood banks, who perform a meritorious service for the community and are entitled to preferential treatment from the law. However, our Supreme Court has indicated that a hospital should not be treated any differently from any other organization; at least, insofar as the rules of negligence are concerned. Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253, 14 A.L.R.3d 860. In other words, we feel that those favoring special protection for hospitals of the kind they had enjoyed before the Darling decision, would read back into the law a preferential treatment for hospitals by circuitous means, such as concluding that blood is not a product, and that those handling it are to...