Dibblee v. Dr. W. H. Groves Latter-Day Saints Hosp.

• Decision Date: 02 October 1961
• Docket Number: No. 9435,LATTER-DAY,9435
• Citation: 364 P.2d 1085,12 Utah 2d 241
• Parties: d 241 Richard C. DIBBLEE, Administrator of the Estate of Keith J. Bowen, Deceased, Plaintiff and Appellant, v. DR. W. H. GROVESSAINTS HOSPITAL, a corporation, Defendant and Respondent.
• Court: Utah Supreme Court

Page 1085

364 P.2d 1085

12 Utah 2d 241

Richard C. DIBBLEE, Administrator of the Estate of Keith J Bowen, Deceased, Plaintiff and Appellant, v. DR. W. H. GROVES LATTER-DAY SAINTS HOSPITAL, a corporation Defendant and Respondent.

No. 9435.

Supreme Court of Utah.

Oct. 2, 1961.

Rawlings, Wallace, Roberts & Black, John L. Black, Salt Lake City, for appellant.

Ray, Quinney & Nebeker, Albert R. Bowen, Salt Lake City, for respondent.

HENRIOD, Justice.

Appeal from a dismissal of plaintiff's complaint. Affirmed with costs to defendant.

Plaintiff alleged three bases for liability in furnishing alleged incompatible blood to deceased, Bowen, who was a patient at the hospital: 1) negligence provable as such, 2) negligence establishable under the res ipsa loquitur doctrine, and 3) by reason of an implied warranty travelling with a sale of the blood.

Under discovery procedure, ¹ in answer to the interrogatories put by plaintiff to defendant, the response indicated that before the transfusions, tests by two registered technologists, in duplicate and independent, the blood of the deceased and that of the donors were identical and compatible. Such results were confirmed by two post-transfusion, duplicate, independent tests by two registered technologists, and by a New Jersey Ortho Research Laboratory. In addition to the interrogatory response, plaintiff submitted defendant's statement of account, which was admitted, and which stated 'Services * * * to Bowen.' Under 'Description' charges were noted for 'room and care,' 'supplies,' 'operating room expense,' 'laboratory service,' 'X-ray,' 'pharmacy,' 'dressings,' 'telephone,' 'oxygen' and 'transfusions $200 * * * less replacements $_____.'

Thereafter the negligence and res ipsa loquitur theories were abandoned and plaintiff stood on the implied warranty theory. The allegation was that 'the transfused blood was sold * * * for a money consideration' which defendant 'impliedly warranted' to be 'fit for the use for which it was intended.'

After argument, on motion, the complaint was dismissed because 'there is no implied warranty wherein a hospital furnishes blood for a transfusion of a patient.'

The decision thus invites our consideration of the question whether a hospital, admittedly free from any negligence in the procuration, testing and furnishing of transfusion blood to a patient at his or his physician's behest, nonetheless must respond in damages under an implied warranty theory if a patient responds negatively to the transfusion. To simplify: Does a hospital, free from negligence, insure against negative results when it furnishes blood on proper order for transfusion into a patient.

Three cases ² and one statute ³ have met this problem. All of them say no sale, common-law wise, decisionally or statutorily. ⁴ 4] No authority disputes this conclusion as far as we know. Some unauthoritative case note comments cited by plaintiff, penned by student writers, ⁵ report the Perlmutter case and suggest some possible kinship to the kind of 'trade' in 'consumer goods' with that of the shippers in the not cold, but icy channels of trade, but point to no authority to support any such suggestion.

We agree spcifically with the conclusion of the cases we cite,--legally virtuous to date,--and generally with their language and logic, to all of which we refer the reader without needless repetition here. Their upshot: That furnishing blood by a hospital at the specific request of a patient or his doctor, and for a charge, is a part of a service, not a sale in any connotational sense of those terms.

We find support in the California legislative manifestation ⁶ of approval for what we say and conclude, which appears to extend the rule theretofore laid down in the Perlmutter case. There, recently and in an obvious rejection of any idea that blood may be included in any expanded legislative inclusion of consumer goods as being subjects of insurism against negative consumer physical reaction, it was said, with no ambiguity, that 'the procurement, processing, distribution, or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing the same, or any of them, into the human body' is not a sale but 'the rendition of a service.' To the obvious philosophy of this enactment we subscribe. This, in the atmosphere of the windy history of the elusive, confusing 'implied warranty' phrase and the sometime but not infrequent superficial distinctions and refinements, according to taste, as to whether it was sired ex contractu or ex maleficio.

We think that practically all hospitals are bourns of mercy and most physicians are unselfish disciples of relief and the cure of human ills. We think of hospitals not as profit-seeking vendors in the market place as might be attributed to General Foods, General Motors, chain stores, super druggeries, national restaurants, or a cereal company that appeals to muscle-building qualities of its food. We do not say that hospitals should be immune from negligence. But we think they should not be strapped with an insurability of blood purity, absent negligence. The argument that public policy demands that the manufacturer of food, the fabricator of machines, the dispenser of meals,--all of whom are self-seeking profit-making beneficiaries of the purchaser, should be bound by an implied warranty, reasonably cannot urge inclusion in such category a traditional institution of healing and mercy, because...