Gilmore v. St. Anthony Hospital, 48947

• Decision Date: 24 July 1979
• Docket Number: No. 48947,48947
• Parties: 26 UCC Rep.Serv. 1135 Wanda G. GILMORE and Joe Lee Gilmore, Appellants, v. ST. ANTHONY HOSPITAL, a corporation, and Oklahoma City Community Blood Bank, Inc., a corporation, Appellees.
• Court: Oklahoma Supreme Court

Page 1200

598 P.2d 1200

26 UCC Rep.Serv. 1135

Wanda G. GILMORE and Joe Lee Gilmore, Appellants, v. ST. ANTHONY HOSPITAL, a corporation, and Oklahoma City

Community Blood Bank, Inc., a corporation, Appellees.

No. 48947.

Supreme Court of Oklahoma.

July 24, 1979.

Rehearing Denied Sept. 10, 1979.

Certiorari to the Court of Appeals, Division No. 1.

Appellants sought damages for injuries sustained allegedly resulting from unfit blood furnished by the Appellees. The District Court, Oklahoma County, Honorable Jack R. Parr, District Judge, sustained Appellees' motion for summary judgment and dismissed the action. Appellants appealed.

On assignment to the Court of Appeals, Division No. 1, the judgment of the District Court was affirmed. Appellants seek Certiorari.

CERTIORARI GRANTED; DECISION OF THE COURT OF APPEALS VACATED; ORDER OF THE TRIAL COURT REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS.

Ed Abel, Oklahoma City, for appellants.

Dale Reneau, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for appellee Oklahoma City Community Blood Bank, Inc.

IRWIN, Vice Chief Justice.

Appellants, Wanda G. Gilmore and Joe Lee Gilmore, sought to recover damages for injuries allegedly sustained by Mrs. Gilmore from a blood transfusion while a patient at St. Anthony Hospital. Mrs. Gilmore allegedly contracted hepatitis from blood furnished by appellee, Oklahoma City Community Blood Bank, Inc. (Blood Bank).

This cause was first presented to this Court on a Certified Interlocutory Order in Gilmore v. St. Anthony Hospital, et al., Okl., 516 P.2d 248 (1973), where we construed 63 O.S.1971, § 2151, ¹ and held that it is necessary to establish negligence before liability may be imposed against a blood bank for furnishing unfit blood. ²

Further proceedings were had in the trial court. Appellees' Motion for Summary Judgment was sustained and appellants appealed. Appellants dismissed their appeal against St. Anthony Hospital leaving Blood Bank as the only appellee.

On assignment to the Court of Appeals the order of the trial court was affirmed on the theory that a written disclaimer ³ attached to the blood furnished Mrs. Gilmore was sufficient under 12A O.S.1971, § 2-316(2) to exclude an implied warranty of fitness. Appellants seek certiorari.

The act of negligence relied upon by appellants relates to the source of the blood that Blood Bank furnished, i. e., Blood Bank obtained its blood, at least in part, through a paid-donor system. Appellants contend that the evidence shows that the use of a paid-donor system, as opposed to the voluntary-donor system, subjects the recipient of the blood (Mrs. Gilmore) to a greatly increased risk of hepatitis and this fact has been recognized for a number of years by the people in the blood banking business. ⁴ Appellants argue Blood Bank should have been using a voluntary-donor system and it was negligent in continuing to use the paid-donor system.

The evidence establishes that the incidence of hepatitis is higher in blood obtained through a paid-donor system than a voluntary system. According to deposition testimony, this is "mainly because the paid donor * * * probably needs the money, and it may well be the type of individual that is taking drugs, or so needs the money in order to support his habit, and as a result, he has a higher exposure to hepatitis." Although the testimony shows that the donor in the case at bar was a paid-donor, there is no evidence that such donor was or was not the type of individual that would fall within the class of a high-risk "exposure to hepatitis", and if he were, Blood Bank should or should not have ascertained such fact.

Undisputed depositional testimony discloses that at the time the blood was furnished no laboratory tests were available to determine the presence of the virus of hepatitis, except in an experimental laboratory. The director of the Blood Bank testified that everything it did was done "under our National Institute of Health Licensing, the United States Governmental licensing, and also, the American Association of Blood Banks Certification, which involves everything from the time the donor comes in, until the blood is used." According to the director, "we check your (donor's) temperature, your pulse, your blood pressure, your hemoglobin, and in the laboratory, we do an ABO Group, an Rh, which is done twice for different methods, a DU, a serology, and an antibody, checking for antibodies, before the blood is used."

The first issue presented is whether the written disclaimer was sufficient to exclude an implied warranty of fitness. Blood Bank has cited no decisional law and has not given any cogent reasons why it is entitled to sustention of its summary judgment based on the disclaimer. Its argument is that appellants offered no testimony to show that the warning was inadequate and not in compliance with the statute. Blood Bank's argument fails to recognize that on motion for judgment there can be no trial of fact issues since its function is to determine whether there are any genuine issues as to material facts. Such motion should therefore be denied if under the evidence reasonable men might reach different conclusions from undisputed facts. Flick v. Crouch, Okl., 434 P.2d 256 (1967).

There are no factual circumstances presented which would permit a summary judgment based on a conclusion that this written disclaimer was sufficient to exclude an implied warranty of fitness in favor of appellants. The only evidence was that the warning was on the "label of the blood". Certiorari granted.

Appellants do not contend that it is negligent per se to obtain blood from a paid-donor, but do contend that obtaining blood from a paid-donor because of the high risk involved, may constitute negligence and in the case at bar there were material issues of fact to be resolved and the trial court erred in sustaining Blood Bank's motion for summary judgment.

It is somewhat difficult to ascertain Blood Bank's position because it presents no evidence elicited by it at the depositional hearings. However, it appears that Blood Bank's position is that there were no tests available to determine the presence of hepatitis and obtaining blood through the paid-donor system does not constitute negligence. It argues there are no genuine issues as to material facts relating to its negligence because there was no evidence of negligence.

In Hines v. St. Joseph Hospital, 86 N.M. 763, 527 P.2d 1075 (1974), the evidence showed that the incidence of hepatitis infection was greater under the paid-donor system than the voluntary system and it was contended that the blood bank was negligent in using the blood of paid donors because of the higher risk involved. There was evidence that the blood of a paid-donor was used. The Court of Appeals of New Mexico found that the blood bank had met all the required standards and had acted with due care; concluded there was no genuine issue as to any material fact as to the negligence of the blood bank; and held that the trial court properly granted the blood bank's motion for summary judgment.

It is apparent the majority of the Court of Appeals of New Mexico made no distinction between the paid-donor system and the voluntary system where the blood bank had met the required standards and acted with due care, but the majority opinion did cite Hutchins v. Blood Services of Montana, 161 Mont. 359, 506 P.2d 449 (1973), which said the evidence submitted did not place in issue the higher risk of using paid-donors. It was contended in Hutchins the blood bank was negligent in using paid-donors where the evidence showed that prisoners, drug addicts, derelicts and skid row bums, who are prone to exchange blood for money, carry a high risk of hepatitis. The Hutchins court said that the evidence showed that the paid donor did not fall within the category of a dangerous donor and the risk of using paid donors was not applicable. The Court was of the opinion that everyone who sells his blood is not a high risk donor and "it is not negligent to offer to buy blood, when a blood bank finds that it is the only way it can meet its obligations". A dissenting opinion was premised on the theory that the facts indicated the paid-donor was in fact in the high risk category and if any inquiries had been made by the blood bank, the paid donor might not have been allowed to sell her blood.

Some courts have held that since (at the time here involved) there were no reliable methods available for determining the presence of serum hepatitis virus, that blood fell within the category of an "unavoidable unsafe product" and was not unreasonably dangerous or a proper subject for application of the doctrine of strict liability in tort under section 402A of the Restatement (Second) of Torts. ⁵ Brody v. Overlook Hospital, 127 N.J.Super. 331, 317 A.2d 392 (1974); and affirmed on certiorari, 66 N.J. 448, 332 A.2d 596 (1975). In 1977, the New Jersey Court in Moore v. Underwood Memorial Hospital, 147 N.J.Super. 252, 371 A.2d 105, citing the Brody decision with approval, held that blood is an "unavoidably unsafe product" within the terms of Restatement of Torts 2d, § 402A, Comment K, and as such is not unreasonably dangerous, and a seller thereof is not to be held strictly liable in tort for serum hepatitis contracted from its use. In Moore, it was argued that Brody, where the blood was obtained from volunteers, was not applicable to commercial blood banks who use paid donors. The court rejected this argument and said; "Whether a product qualifies as "unavoidably unsafe" is to be determined by the nature of the substance. As far as the doctrine of strict liability in tort or breach of warranty are concerned, the source of the substance is simply not relevant." Moore also argued that he was entitled to submit his case to the jury because an inference of negligence could reasonably be drawn from the fact that the paid-donor had "a past social and medical history which...