Cunningham v. MacNeal Memorial Hospital

• Decision Date: 29 September 1970
• Docket Number: 42578,Nos. 42526,s. 42526
• Citation: 47 Ill.2d 443,45 A.L.R.3d 1353,266 N.E.2d 897
• Parties: , 45 A.L.R.3d 1353 Frances CUNNINGHAM, Appellee, v. MacNEAL MEMORIAL HOSPITAL, Appellant.
• Court: Illinois Supreme Court

Page 897

266 N.E.2d 897

47 Ill.2d 443, 45 A.L.R.3d 1353

Frances CUNNINGHAM, Appellee, v. MacNEAL MEMORIAL HOSPITAL, Appellant.

Nos. 42526, 42578.

Supreme Court of Illinois.

Sept. 29, 1970.

Rehearing Denied Dec. 3, 1970.

Howard & French, Chicago (Richard G. French, Chicago, of counsel), for appellant.

Horwitz, Anesi, Ozmon & Associates, Chicago (Nat P. Ozmon and Dario A. Garibaldi, Chicago, of counsel), for appellee.

Harry L. Kinser and Edward J. McLaughlin, Chicago, and Frank M. Pfeifer, Springfield (McLaughlin, Kinser & Bryant, Chicago, and Pfeifer, Fixmer, Gasaway & Ackerman, Springfield, of counsel), amici curiae, Illinois Hospital Ass'n et al.

Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, and Hassard, Bonnington, Rogers & Huber, San Francisco, Cal. (Howard Hassard and David E. Willett, San Francisco, Cal., of counsel), for American Ass'n of Blood Banks, amici curiae.

Albert E. Jenner, Jr., Kenneth J. Burns, Jr., and Jerold S. Solovy, Chicago, and Paul M. Roca and James Moeller, Phoenix, Ariz. (Jenner & Block, Chicago, and Lewis, Roca, Beauchamp & Linton, Phoenix, Ariz., of counsel), for Blood Services, amici curiae.

Edward J. Kionka, Urbana, for American Trial Lawyers Ass'n, amicus curiae.

CULBERTSON, Justice.

This appeal questions the legal propriety of the application of the strict tort liability theory under the circumstances alleged to be here present and reaches us pursuant to a certificate of importance (see our Rule 316) granted by the appellate court.

Plaintiff's second amended complaint, with the adequacy of which we are here concerned, alleges that the plaintiff, Mrs. Frances Cunningham, was a patient at defendant hospital in May of 1960; that defendant, as a part of its services rendered to plaintiff during her stay, and ancillary thereto, sold and supplied her blood for the purposes of transfusion in the treatment of her condition; that such blood was sold in a container and had been received by defendant in the commercial line of distribution from the Michael Reese Hospital Blood Bank; that the blood supplied by defendant to plaintiff was defective and in an unreasonably dangerous condition at the time it left the hands of defendant and that, as a direct and proximate result of such defect, plaintiff was caused to and did contract serum hepatitis; that such disease required further hospitalization and medical treatment and resulted in permanent disabilities, damaging the plaintiff in the sum of $50,000 or such greater or lesser sum as the court or jury may award.' Defendant's response to plaintiff's second amended complaint was a motion for judgment based on the contention that the theory of strict liability in tort, as averred in the second amended complaint, does not apply to the transfusion of blood by a hospital as a part of its services rendered to patients. The circuit court of Cook County, agreeing with defendant, allowed its motion and entered judgment for defendant, from which judgment plaintiff appealed to the appellate court. That court, with one justice dissenting, held that the second amended complaint properly stated a cause of action under the strict tort liability theory, and therefore reversed the judgment of the circuit court and remanded the cause for trial. 113 Ill.App.2d 74, 251 N.E.2d 733.

As noted by the appellate court, the question involved in this case is whether or not the doctrine of strict liability, as set forth by our decision in Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, applies where, as alleged in the plaintiff's second amended complaint, a hospital patient contracts serum hepatitis from blood transfused into her system by the hospital as an ancillary part of the services rendered by the hospital to the patient. Because of the manifest importance and far-reaching effect involved ain a judicial disposition of the issues appearing herein, pursuant to leave requested, we have allowed the filing of briefs Amici curiae by (1) the Illinois Hospital Association, the Chicago Hospital Council and the Illinois State Medical Society; (2) Blood Services, a community blood bank; (3) the American Association of Blood Banks; and (4) the American Trial Lawyers Association. See our Rule 345.

Section 402A of the Restatement (Second) of torts: '(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 state 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.'

Defendant initially argues that strict tort liability cannot apply in this case for the reason that whole human blood is not a 'product' as that term is contemplated by the Restatement. We must disagree. Comment E to the above Restatement section provides that 'Normally the rule stated in this Section will be applied to articles which already have undergone some processing before sale, since there is today little in the way of consumer products which will reach the consumer without such processing. The rule is not, however, so limited, and the supplier of poisonous mushrooms which are neither cooked, canned, packaged, nor otherwise treated is subject to the liability here stated.' (Emphasis supplied.) (Restatement (Second) of Torts § 402A, Comment E.) While whole blood may well be viable, human tissue, and thus not a manufactured article of commerce, we believe that it must in this instance be considered a 'product' in much the same way as other articles wholly unchanged from their natural state which are distributed for human consumption. Community Blood Bank, Inc. v. Russell (Fla.), 196 So.2d 115, 118--119 (Roberts, J., specially concurring); Cf. United States v. Steinschreiber (S.D.N.Y.) 218 F.Supp. 426; United States v. Calise (S.D.N.Y.) 217 F.Supp. 705, 708.

It is next urged by defendant that the transfusion of whole blood, as alleged in the second amended complaint, constitutes a 'service' as opposed to a 'sale' and that thus defendant is not 'engaged in the business of selling' blood as required by Suvada in order for strict liability to attach. In this connection much is said in the briefs concerning the mechanics of the acquisition and distribution of whole blood by blood banks and hospitals, from the time it leaves the donor until it reaches the patient. In our judgment, whether or not defendant is engaged in the business of selling whole blood as envisaged by Suvada and section 402A of the Restatement (Second) of Torts, cannot be answered in the abstract, devoid of evidentiary basis. The lengthy expositions in the briefs concerning the distribution of blood for transfusion purposes are clearly evidentiary in nature and are thus not properly cognizable in the first instance by a court of review. However, as we have heretofore consistently held, a motion for judgment on the pleadings, as filed by defendant in the circuit court herein, tests the sufficiency of the pleadings as a matter of law (in this case the adequacy of plaintiff's second amended complaint), And admits the truth of all facts well-pleaded in the pleading of the opposite party. (Milanko v. Jensen, 404 Ill. 261, 88 N.E.2d 857; Schmidt v. Landfield, 23 Ill.App.2d 55, 161 N.E.2d 702, aff'd 20 Ill.2d 89, 169 N.E.2d 229.) While it may be arguable that the word 'sold' in the second amended complaint is conclusionary in nature and is thus not a well-pleaded factual allegation other than merely indicating the existence of consideration in connection with the transaction (see Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792, 793), we believe any defect in this regard is cured by the subsequent use of the word 'supplied'. At this juncture, then, we must look only to the allegations of the second amended complaint. It is alleged therein 'That the defendant * * * 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 said blood was sold in a container and had been received by the defendant in the commercial line of distribution from the Michael Reese Hospital Blood Bank.' The question thus becomes whether the supplying of whole blood for transfusion into a patient by a hospital as an ancillary part of the services rendered to that patient, for which a charge is made, places such hospital in the business of selling blood as envisaged by our ruling in Suvada adopting the concept of strict tort liability as the law of Illinois.

Defendant places principal reliance for its position on this issue on the case of Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792, where, in a four-to-three decision, the Court of Appeals of New York held that the transfusion of blood into a patient by a hospital, as a part of its general services, but for which a separate charge was allegedly made, did not constitute a 'sale' under the sales act in force in New York at that time. As a result, there existed no warranty of merchantability or fitness for the purpose intended upon which a plaintiff, who had allegedly contacted serum hepatitis from the blood supplied by the hospital, could predicate a cause of action. The court, in reaching its conclusion, noted that '* * * when one enters a hospital as a patient; he goes there, not to buy medicine or pills, not to purchase bandages or iodine or serum or blood, but to obtain a course of treatment in the hope of being cured of what ails him.' (123 N.E.2d at p. 796.) Also, '* * * (t)he art of healing frequently calls for a balancing...