Fischer v. Wilmington General Hospital, 775

• Decision Date: 20 March 1959
• Docket Number: 1957,No. 775,775
• Citation: 149 A.2d 749,51 Del. 554,1 Storey 554
• Parties: , 51 Del. 554 Yolanda FISCHER and William Fischer, Plaintiffs, v. WILMINGTON GENERAL HOSPITAL, a corporation of the State of Delaware, Defendant. Civil Action
• Court: Delaware Superior Court

Page 749

149 A.2d 749

1 Storey 554, 51 Del. 554

Yolanda FISCHER and William Fischer, Plaintiffs, v. WILMINGTON GENERAL HOSPITAL, a corporation of the State of

Delaware, Defendant.

Civil Action No. 775, 1957.

Superior Court of Delaware, New Castle County.

March 20, 1959.

Aubrey B. Lank and Joseph T. Walsh of Logan, Marvel, Boggs & Theisen, Wilmington, for plaintiffs.

Rodney M. Layton of Richards, Layton & Finger, Wilmington, for defendant.

SEITZ, Chancellor. ¹

The plaintiffs are husband and wife. I shall refer to Mrs. Fischer as 'plaintiff'.

Plaintiff was admitted to the Hospital on July 30, 1956, to receive treatment in connection with an incomplete abortion. Dr. Frank Hassler performed a surgical procedure known as dilation and curettement upon plaintiff and in the process caused 500 cc's of whole blood to be administered to her. Although the Hospital vigorously disputes it, on the present record, solely for purposes of deciding this motion, I must assume that Dr. Hassler was the defendant's agent and not in the position of plaintiff's personal physician.

Plaintiff was released from the Hospital in about two days, but on September 6, 1956, Dr. Frank J. Gilday caused plaintiff's readmission to the Hospital for treatment of viral hepatitis.

Subsequently, plaintiffs filed this action alleging that she had contacted the disease known as serum hepatitis ² as a result of the negligence of defendant's agents in administering to her, in transfusion, blood containing the causative agent of the disease.

The defendant has moved for summary judgment in its favor and this is the decision thereon. Fairly elaborate affidavits have been filed. This appears to be the first Delaware case where any aspect of the transfusion problem has been presented to the court.

While plaintiffs' complaint alleges several grounds of negligence, their attorney agreed at oral argument that for purposes of the present motion plaintiff relies only upon the following allegation:

'The Defendant, Wilmington General Hospital, its agents, servants or employees knowing that the said whole blood administered to the Plaintiff, Yolanda Fischer, was, or could have been infected by a disease or virus, failed to so advise Plaintiff, Yolanda Fischer, of its knowledge.'

Defendant's affidavits establish indisputably that there is no known medical technique by which the virus which causes hepatitis can be detected or destroyed in the whole blood. The affidavits further disclose that the blood used in the transfusion here involved was procured under conditions which imposed all reasonable safeguards to assure that it did not contain the virus which causes such hepatitis. Plaintiffs' affidavits raise no doubt on this score. Consequently, to the extent plaintiffs' complaint is predicated on the allegation that the defendant's agents, etc., knew that the blood administered to plaintiff was infected by the hepatitis virus and failed to so advise plaintiff, it is without support in the record. On the contrary, the only reasonable inference from the record is that defendant's agents did not know that the blood contained such virus. See 42 Minn.Law Rev. 640, 654-7. In so stating, I am assuming without deciding that plaintiff's hepatitis was caused by the transmission of the virus in the course of the blood transfusion. Defendant contends to the contrary but that issue cannot be resolved at this stage.

This then brings the court to the basic issue, namely, whether the defendant, Hospital, was negligent in that its agents administered whole blood to the plaintiff knowing that such blood could have been infected by the virus which causes hepatitis and yet failed to so advise plaintiff prior to the transfusion.

Defendant contends that this cannot be a case of negligence because there is no showing of proximate cause between the alleged breach of duty in failing to advise the plaintiff of the risk and the fact that the disease was assumedly contracted by virtue of the transfusion. Defendant says that plaintiffs' complaint, if it alleges anything, alleges assault and battery arising from the failure to procure consent in advance.

Plaintiff claims that the failure to warn her of the known risk constituted negligence. However, no question of lack of 'consent' is here raised by plaintiffs. Nor is any claim of negligence made in connection with the use of whole blood.

It is undisputed that neither plaintiff nor her husband was advised of the risk incident to the transfusion although they could have been.

Passing over the dispute as to whether defendant's actions, if wrongful, would be a trespass or negligence, the issue in either event would appear to be whether the known risk here involved was of a type which imposed upon defendant a duty to warn plaintiff in advance. No case involving this theory of negligence with respect to blood transfusions has been found anywhere. Compare 59 A.L.R.2d 768.

The defendant filed several affidavits of medical doctors and there is no attack upon the qualifications of such doctors. The doctor who directed the giving of the transfusion and who performed the operation, says in his affidavit in part:

'Mrs. Fischer had been admitted to the Hospital under a provisional diagnosis of incomplete abortion accompanied by lower abdominal pain and vaginal bleeding. The history received in connection with Mrs. Fischer's admission showed that the vaginal bleeding had continued for five hours prior to her admission. This bleeding continued, and, prior to the time when the surgical procedure aforesaid was performed by me, it became brisk. In connection with Mrs. Fischer's illness and the surgical procedure dictated thereby, I caused the administration to her of 500 cc. of whole blood by transfusion.

'* * * I am familiar with the results of current medical research in the causes of maternal mortality and state that hemorrhages and resulting shock are the prime cause of maternal death in the United States at the present time.

'It is clearly indicated by the above facts that the danger of fatality resulting from blood loss and consequent shock in cases such as that of Mrs. Fischer clearly overrides the risk of the contraction of a viral hepatitis by means of blood transfusion. In spite of the temporary disability and discomfort associated with hepatitis and the natural desire of the physician to avoid the transmission of the disease to his patient, the fatality rate from hepatitis being less than 0.5% in the presence of the very great danger of fatality from blood loss and consequent shock, such transmission represents an almost insignificant risk. In my opinion it would, generally,...