Easterly v. HSP of Texas, Inc.

• Decision Date: 08 May 1989
• Docket Number: No. 05-88-00889-CV,05-88-00889-CV
• Citation: 772 S.W.2d 211
• Parties: 9 UCC Rep.Serv.2d 530, Prod.Liab.Rep. (CCH) P 12,239 Jennifer EASTERLY, et vir, Dan Easterly, Appellants, v. HSP OF TEXAS, INC., d/b/a HCA Medical Center of Plano, f/k/a Plano General Hospital, Appellee.
• Court: Texas Court of Appeals

Page 211

772 S.W.2d 211

9 UCC Rep.Serv.2d 530, Prod.Liab.Rep. (CCH) P 12,239

Jennifer EASTERLY, et vir, Dan Easterly, Appellants, v. HSP OF TEXAS, INC., d/b/a HCA Medical Center of Plano, f/k/a Plano General Hospital, Appellee.

No. 05-88-00889-CV.

Court of Appeals of Texas Dallas.

May 8, 1989.

Timothy M. Fults, Dallas, for appellants.

Sheree Lynn McCall, Michelle D. Chadwick, Strasburger & Price, Dallas, for appellee.

Before ENOCH, C.J., and WHITHAM and BURNETT, JJ.

ENOCH, Chief Justice.

Jennifer Easterly and her husband, Dan Easterly, sued Medical Center of Plano (MCP) for the sale of a defective product. The trial court granted summary judgment in favor of MCP. In one point of error the Easterlys contend that the trial court erred in granting summary judgment because genuine issues of fact exist. We disagree and, affirm the trial court's judgment.

FACTS

Jennifer Easterly was admitted to the hospital to deliver a child. Once active labor began, Easterly received epidural anesthesia to facilitate the childbirth. The "epidural kit," a sealed package containing an epidural needle and catheter, was provided by MCP.

Epidural anesthesia is administered by inserting a needle into the spinal column, and then pushing the catheter through the needle. The needle is then removed, leaving the catheter in place to enable the anesthesia to flow throughout the delivery.

During administration of this procedure to Jennifer Easterly, while the needle was still in the spinal column, the catheter broke and was left in Easterly's spine. Another epidural kit was utilized and delivery proceeded; however, subsequent surgery was necessary to remove the broken catheter.

The Easterlys sued MCP alleging three causes of action: (1) strict liability; (2) breach of warranty; and (3) deceptive trade practices. The trial judge granted summary judgment for MCP, and the Easterlys now appeal.

SUMMARY JUDGMENT

A. Strict Liability

In order to be held strictly liable as a supplier, the Restatement (Second) of the Law of Torts states that:

(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 and does reach the user or consumer without substantial change in the condition in which it is sold.

RESTATEMENT (SECOND) OF TORTS § 401A (1965).

As a general proposition, a hospital cannot be held strictly liable for defective services as opposed to defective products. Nevauex v. Park Place Hosp., Inc., 656 S.W.2d 923, 925 (Tex.App.--Beaumont 1983, writ ref'd n.r.e.). See, e.g., Langford v. Kraft, 551 S.W.2d 392, 396 (Tex.Civ.App.--Beaumont 1977), aff'd, 565 S.W.2d 223 (Tex.1978). See generally Sales, Strict Tort Liability, 11 Hous.L.Rev. 1043, 1066 (1974). Strict liability, however, has been applied to hospitals where the court found that the hospital introduced into the stream of commerce a defective product unrelated to the essential professional relationship. Thomas v. St. Joseph Hosp., 618 S.W.2d 791, 796-97 (Tex.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.). Therefore, we must ascertain whether the epidural kit was intimately and inseparably connected to the professional service of providing Jennifer Easterly with anesthesia during the delivery of her child.

For strict liability to apply, the product must be released in some manner to the consuming public. American Cyanamid Co. v. Frankson, 732 S.W.2d 648 (Tex.App.--Corpus Christi 1987, writ ref'd n.r.e.). An epidural kit is not an ordinary good offered to the general public in regular commercial transactions. See Barbee v. Rogers, 425 S.W.2d 342, passim (Tex.1968); Vergott v. Deseret Pharmaceuticals Co., 463 F.2d 12, 16-17 (5th Cir.1972). The hospital is not in the business of selling epidural kits separate from the medical relationship between doctor and patient involving the furnishing of medical services.

The "sale" of the epidural kit was integrally related to the medical procedure--the kit was not a separate good sold in a commercial transaction. See Shivers v. Good Shepherd Hosp. Inc., 427 S.W.2d 104, passim (Tex.Civ.App.--Tyler 1968, writ ref'd n.r.e.) (hospital not strictly liable because it was not a manufacturer or distributor of alleged defective drug); Ethicon, Inc. v. Parten, 520 S.W.2d 527, 533 (Tex.Civ.App.--Houston [1st Dist.] 1975, no writ) (hospital not strictly liable for a needle which broke off in patient's vaginal cuff). In other words, the epidural kit was so intimately connected to the service provided as to lose its separate character as a good. Thomas v. St. Joseph Hospital, 618 S.W.2d at 791, cited by the Easterlys, is distinguishable because, in that case, the patient could have provided his own pajamas; in this case, Jennifer Easterly could not have provided her own epidural kit nor her own anesthesia. Accordingly, summary judgment was proper on the Easterly's strict liability cause of action.

B. Breach of Warranty

Easterly also alleged breach of warranty against MCP. In order for the breach of warranty to apply, there must be a sale of goods by a merchant who deals in goods of the kind. Goods means all things (including specially manufactured goods) which are moveable at the time of identification under the contract for sale. This does not include money which is used for the purchase price. TEX.BUS. & COM.CODE ANN. §§ 2.105, 2.314 (Vernon 1968).

We recognize that Providence Hospital v. Truly, 611 S.W.2d 127, 130 (Tex.Civ.App.--Waco 1980, writ dism'd w.o.j.) holds that a hospital can be held liable for breach of warranty. Specifically, that court held that Texas Business and Commerce Code (UCC) sections 2.315 and 2.316 impose an implied warranty of fitness of goods sold for a particular purpose, unless the warranty is "excluded or modified under the next section," pertaining to the furnishing of human blood, blood plasma, or other human tissue or organs from a blood bank or reservoir of such other tissues or organs.

Despite the holding in Providence, Texas follows the majority rule that the essence of the hospital stay is the furnishing of the institution's healing services. These services necessarily require certain goods or products, and these goods are usually incidental to the primary purpose of the hospital's function which is to heal. Potts v. W.Q. Richards Memorial Hosp., 558 S.W.2d 939, 946 (Tex.Civ.App.--Amarillo 1977, no writ); Goelz v. Wadley Research Inst. & Blood Bank, 350 S.W.2d 573, 577 (Tex.Civ.App.--Dallas 1961, writ ref'd n.r.e.). See Perlmutter v. Beth David Hosp., 308 N.Y. 100, 123 N.E.2d 792, 793-94 (1954). See Annotation, Liability For Injury or Death from Blood Transfusion. 45 A.L.R.3d 1364, 1383-85 (1972). In Nevauex, the court held that the hospital was not a merchant under the UCC, even though it gave radiation treatments using cobalt. Since the hospital was not a merchant, it could not be liable for a breach of implied warranty. Nevauex, 656 S.W.2d at 926. Nothing in the record supports the argument that MCP was a merchant as defined in the Texas Business and Commerce Code. TEX.BUS. & COM.CODE ANN. § 2.104 (Vernon 1965).

We agree that the fundamental purpose of hospitals is to heal. As a general proposition, hospitals are providers of services, not merchants selling goods. Absent a specific showing of the sale of a good not intimately related to the medical service provided, summary judgment was proper on the Easterly's breach of warranty cause of action.

C. Deceptive Trade Practices

Easterly's last theory of liability is based on MCP's breach of warranty, unconscionable conduct and misrepresentation under the Texas Deceptive Trade Practices--Consumer Protection Act (DTPA)....