Foster v. Memorial Hospital Ass'n of Charleston

• Decision Date: 25 November 1975
• Docket Number: No. 13450,13450
• Court: West Virginia Supreme Court
• Parties: , 18 UCC Rep.Serv. 287 Ethel FOSTER et al. v. MEMORIAL HOSPITAL ASSOCIATION OF CHARLESTON.

Page 916

219 S.E.2d 916

159 W.Va. 147, 18 UCC Rep.Serv. 287

Ethel FOSTER et al. v. MEMORIAL HOSPITAL ASSOCIATION OF CHARLESTON.

No. 13450.

Supreme Court of Appeals of West Virginia.

Nov. 25, 1975.

Syllabus by the Court

Where an individual contracts for Professional services which involve an incidental transfer of personal property in the performance of the service, such transfer is not within the contemplation of W.Va.Code, 46-2-314 (1963) and 46-2-315 (1963) concerning implied warranties and warranties of fitness for a particular purpose unless the transferred property consisted of a standardized, commercially manufactured product which was inherently defective for the purpose for which it was originally intended.

Rudolph L. DiTrapano and W. C. Field, Charleston, for appellants.

Wilson Anderson, Charleston, for appellee.

NEELY, Justice:

At first blush this case would appear to be one of first and last impression in West Virginia; however, it presents a theoretical problem with regard to the law of warranty which may have continuing importance in analogous situations.

In 1970, the appellants, Ethel Foster and Freeman R. Foster, sued the defendant, Memorial Hospital Association of Charleston, for breach of warranty arising from a transfusion of impure blood into plaintiff Ethel Foster. Plaintiffs alleged that the defendant hospital impliedly warranted the blood as fit for the purpose of transfusion, and further alleged that the defendant hospital breached its implied warranty, as Mrs. Foster contracted serum hepatitis from the transfusion which rendered her permanently disabled. The Circuit Court of Kanawha County granted a summary judgment for the defendant hospital on the grounds that an exchange of blood is not a 'sale' which would support an action in warranty, but rather is the performance of a 'service.' As the Circuit Court's decision is in harmony with the great weight of authority throughout the country, and as this Court holds that an action in warranty is improper, the judgment of the Circuit Court is affirmed.

In 1971 the West Virginia Legislature enacted W.Va.Code, 16-23-1 (1971) which provided that the furnishing of human blood for transfusion is to be considered a service and not a sale, and that no warranties shall be applicable; ¹ however, plaintiffs argue correctly that the facts supporting plaintiffs' cause of action arose in 1968, three years before enactment of the statute, and therefore, the disposition of this case is governed by the general law. Consequently, plaintiffs would have this Court resolve the case at bar on the basis of W.Va.Code, 46-2-106 (1963), concerning the definition of a 'sale,' W.Va.Code, 46-2-314 (1963) concerning implied warranties, and W.Va.Code, 46-2-315 (1963) concerning implied warranties for a particular purpose. ²

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The facts of this case do not disclose whether the transfer of blood was characterized as a 'sale' by the parties at the time of the transfusion, and while the parties argue the question vociferously in their respective briefs, the record is devoid of any concrete evidence concerning the issue. On a motion for summary judgment the facts must be viewed in a light most favorable to the party against whom the motion is sought. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Spangler v. Fisher, 152 W.Va. 141, 159 S.E.2d 903 (1968). Therefore, we must assume, arguendo, that the defendant hospital accounted for the transaction as a 'sale.'

The simplest method of disposition would be for this Court to characterize the transaction as either a 'sale' or a 'service' as a matter of law and to permit that linguistic characterization to be dispositive of the issue; however, such a course provides merely a result without a reason. The issue in this case is not simply whether ownership of personal property passed from one person to another, but rather whether the transfer of personal property in this case is of the type contemplated under the law of warranty.

I

The great weight of authority in the United States under the common law, the Uniform Commercial Code, and the old Sales Act, is that a transaction involving blood is not a 'sale' creating an implied warranty of fitness. The landmark case on the subject is Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 (1954) in which the court held that the essence of the contractual relationship between hospital and patient is one in which the patient bargains for, and the hospital agrees to make available, the human skill and physical material of medical science to the end that the patient's health is restored. The Court said:

'Such a contract is clearly one for services, and, just as clearly, it is not divisible. Concepts of purchase and sale cannot separately be attached to the healing materials--such as medicines, drugs or, indeed, blood--supplied by the hospital for a price as part of the medical services it offers. That the property or title to certain items of medical material may be transferred, so to speak, from the hospital to the patient during the course of medical treatment does not serve to make each such transaction a sale. "Sale' and 'transfer' are not synonymous,' and not every transfer of personal property constitutes a sale. (Citations omitted) It has long been recognized that, when service predominates, and transfer of personal property is but an incidental feature of the transaction, the transaction is not deemed a sale within the Sales Act.'

This Court agrees with the reasoning of Perlmutter, supra, and holds that a court must look to the underlying contract in a close case such as the one Sub judice in order to discover its implied terms. ³ The provisions of W.Va.Code, 46-2-314 (1963) create a warranty '. . . if the seller is a merchant with respect to goods of that kind.' A hospital or a doctor does not exactly fit into the mold of a 'merchant' in the transaction of furnishing blood to a patient in the course of medical treatment. Obviously the ownership of personal property passed for a consideration; however, is it the type of transfer to which the law of warranty applies? There is a reasonable difference between a merchant on the one hand who is engaged in the active promotion and sale of his product such as coca cola bottles, automobile axles, or standardized drugs and a doctor, dentist or lawyer on the other hand who supplies medicine, blood, tooth fillings, or legal briefs in the course of his professional relationship with a patient or client. ⁴

In the practice of medicine there is inevitably a balancing of risks and benefits to any patient involving a highly sophisticated set of probabilities which must be analyzed by medical practitioners in order to do the maximum possible good for the patient with the minimum possible risk. While in the case at bar the hospital may conceivably have been negligent in not subjecting the blood to more extensive tests, blood is not such a standardized product that its use can be segregated from the skill and judgment of the person prescribing it in the same way that an automobile wheel can be segregated from the skill and judgment of the mechanic installing that wheel on a vehicle.

The hospital has not undertaken to be an insurer in this type of situation and the Court finds that holding the hospital liable today would encourage a gradual expansion of the doctrine of warranty to permit recovery in situations totally outside the intent of the warranty provisions of the Uniform Commercial Code, which have historically required negligence. If the plaintiffs in the case at bar believed that the hospital or the attending physicians acted in a negligent way, and failed to use due care to protect Mrs. Foster from the known risk of serum hepatitis, they could have brought a timely action in tort, and, through discovery procedures, could have determined whether the hospital met the standard of care applicable to this type of situation.

II

The plaintiffs allege that the transfused blood contained serum hepatitis viruses and argue that the risk of this type of infection from the routine transfusion of blood should be borne by the hospital. Unlike standard commercial products, however, blood is dispensed under a wide variety of circumstances which do not lead to the imposition of the type of uniform standard of care envisaged by the law of warranty. In this regard blood which is manufactured in the human body can be distinguished from standardized drugs in that the latter are amenable to quality control by the manufacturer while human blood is obviously not. One can imagine a situation in which a patient needs a large quantity of blood over a protracted period of time, and in which blood is taken from one donor after another to be transfused almost immediately into the patient. Obviously under circumstances such as this the degree of 'reasonable care' necessary to protect the hospital from liability must be lower than in other circumstances because the exigencies of the situation demand...