Hector v. Cedars-Sinai Medical Center, CEDARS-SINAI

• Decision Date: 29 April 1986
• Docket Number: CEDARS-SINAI
• Citation: 180 Cal.App.3d 493,225 Cal.Rptr. 595
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 11,014 Frances J. HECTOR, Plaintiff and Appellant, v.MEDICAL CENTER, Defendant and Respondent. Civ. B012677.

Page 595

225 Cal.Rptr. 595

180 Cal.App.3d 493, Prod.Liab.Rep. (CCH) P 11,014

Frances J. HECTOR, Plaintiff and Appellant, v. CEDARS-SINAI MEDICAL CENTER, Defendant and Respondent.

Civ. B012677.

Court of Appeal, Second District, Division 1, California.

April 29, 1986.

As Modified May 27, 1986.

Royce & Seaman, Royce & Inferrera, George R. Royce, John M. Inferrera and William J. Moon, for plaintiff and appellant.

Veatch, Carlson, Grogan & Nelson, James C. Galloway, Jr., Michael E. Wasserman, Greines, Martin, Stein & Richland, Kent L. Richland and Regina Covitt, for defendant and respondent.

SPENCER, Presiding Justice.

INTRODUCTION

Plaintiff Frances J. Hector appeals from an order dismissing her second and third causes of action against defendant following the granting of defendant's motion for partial summary judgment.

STATEMENT OF FACTS

Plaintiff filed a complaint against Cedars-Sinai Medical Center (Cedars-Sinai) and American Technology, Inc., alleging personal injury resulting from the implantation of a defective pacemaker. The pacemaker was manufactured by American Technology, Inc. and implanted at Cedars-Sinai by plaintiff's physician, Dr. Eugene Kompaniez.

The complaint contained three causes of action: negligence, strict liability and breach of warranty. Cedars-Sinai moved for partial summary judgment on plaintiff's second and third causes of action, strict liability and breach of warranty, alleging as a matter of law there were no triable issues of fact. The trial court granted the motion. Plaintiff subsequently requested and received dismissal of the first cause of action, negligence, against Cedars-Sinai. The trial court then issued

its order dismissing the second and third causes of action. ¹

CONTENTION

Plaintiff contends the trial court erred in finding Cedars-Sinai was exempt from the application of the strict products liability doctrine. For the reasons set forth below, we disagree.

DISCUSSION

A motion for summary judgment properly is granted where the "affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice ... may be taken" in support of and in opposition to the motion "show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 437c, subds. (b), (c).) The moving party's papers will be strictly construed, accepting as fact only those portions not contradicted by opposing papers ( Harding v. Purtle (1969) 275 Cal.App.2d 396, 399, 79 Cal.Rptr. 772), while the opposing party's papers are liberally construed, all facts therein being accepted as true (Orser v. George (1967) 252 Cal.App.2d 660, 669, 60 Cal.Rptr. 708). (Kelleher v. Empresa Hondurena de Vapores, S.A. (1976) 57 Cal.App.3d 52, 56, 129 Cal.Rptr. 32.) Every reasonable doubt will be resolved in favor of the complaint. (Schaefer v. Manufacturers Bank (1980) 104 Cal.App.3d 70, 78, 163 Cal.Rptr. 402; Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 626-627, 157 Cal.Rptr. 248.)

The trial court granted defendant's motion for partial summary judgment on the basis of Silverhart v. Mount Zion Hospital (1971) 20 Cal.App.3d 1022, 98 Cal.Rptr. 187. In Silverhart, plaintiff was undergoing surgery at defendant hospital when a surgical needle broke; the needle remained permanently imbedded in plaintiff's body. The trial court refused to instruct the jury as to the theory of strict liability.

On appeal, the court first recalls the origin of the application of strict liability in California: Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 held that " '[a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.' (At p. 62 [27 Cal.Rptr. 697, 377 P.2d 897].)" (Silverhart, supra, 20 Cal.App.3d at p. 1025, 98 Cal.Rptr. 187.) The court then notes the expansion of the doctrine to impose strict liability on others in the chain of distribution, not merely manufacturers. (Id., at p. 1026, 98 Cal.Rptr. 187.) For example, Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 extends strict liability to retailers since they are "engaged in the business of distributing goods to the public" and "are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products." (At p. 262, 37 Cal.Rptr. 896, 391 P.2d 168.) This rule is stated in section 402A of the Restatement Second of Torts: "(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...." (See Silverhart, supra, 20 Cal.App.3d at p. 1028, 98 Cal.Rptr. 187; see also Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 475, 85 Cal.Rptr. 629, 467 P.2d 229.)

After surveying the cases which expand the scope of strict liability, the Silverhart court observes: "A significant common element running through the cases is that each of the defendants against whom the standard of strict liability has been applied played an integral and vital part in the overall production or marketing enterprise. At the very least the defendant in each case was a link in the chain of getting goods from the manufacturer to the ultimate user or consumer.... Plaintiff seeks to extend the doctrine of strict liability to a hospital that furnishes, in connection with the care and treatment of a patient, a product that proves to have a defect that causes injury to the patient. The theory upon which she seeks to predicate such liability is that the hospital is a 'supplier' of such product and, therefore, should be subject to the same standard of liability as any other supplier of articles or products." (20 Cal.App.3d at p. 1026, 98 Cal.Rptr. 187, citations omitted.)

The court then examines two key cases in which strict liability has not been applied to the medical profession: "In Magrine v. Krasnica [ (1967) ] 94 N.J. Super. 228 , affirmed 100 N.J.Super. 223 , and 53 N.J. 259 , the court declined to apply the doctrine of strict liability to a dentist whose drill, with a latent defect, broke while he was working on his patient, causing injury to the patient. The court stated, 'Of ... meaningful significance is a recognition that the essence of the transaction between the retail seller and the consumer relates to the article sold. The seller is in the business of supplying the product to the consumer. It is that, and that alone, for which he is paid. A dentist or a physician offers, and is paid for, his professional services and skill. That is the essence of the relationship between him and his patient.' (94 N.J.Super. at p. 235 .)

"The foregoing statement in Magrine was cited with approval in Carmichael v. Reitz [(1971)] 17 Cal.App.3d 958, 979 .... In Carmichael it was held that the doctrine of strict liability did not apply to a doctor who prescribed a drug which produced untoward results in a patient. In that case we find the following rationale: '[T]here is a difference in status or classification between those upon whom the courts have heretofore imposed the doctrine of strict liability and a physician who prescribes an ethical drug to achieve a cure of the disorders for which the patient has sought his professional services. The former act basically as mere conduits to the distribution of the product to the consumer; the latter sells or furnishes his services as a healer of illnesses. The physician's services depend upon his skill and judgment derived from his specialized training, knowledge, experience, and skill. The physician prescribes the medicine in the course of chemotherapy only as a chemical aid or instrument to achieve a cure. A doctor diagnosing and treating a patient normally is not selling either a product or insurance. One of the requisites which the Restatement prescribes for the imposition of strict liability is that "the seller is engaged in the business of selling such product." (Rest.2d Torts, § 402A.)' (See com. f.)" (Silverhart v. Mount Zion Hospital, supra, 20 Cal.App.3d at pp. 1026-1027, 98 Cal.Rptr. 187, emphasis original.)

The Silverhart court was "persuaded that the rationale of Magrine and Carmichael applies with equal force to a hospital in the exercise of its primary function which is to provide medical services. A hospital is not ordinarily engaged in the business of selling any of the products or equipment it uses in providing such services. The essence of the relationship between a hospital and its patients does not relate essentially to any product or piece of equipment it uses but to the professional services it provides." (Id., at p. 1027, fn. omitted, 98 Cal.Rptr. 187.) The court notes, however, that "this principle does not apply where the hospital is engaged in activites not integrally related to its primary function of providing medical services, such as the situation where the hospital operates a gift shop which sells a defective product." (Ibid., fn. 4.) The court concludes the rule of strict liability cannot be applied to defendant hospital. (Id., at p. 1028, 98 Cal.Rptr. 187.)

The key to the court's conclusion is the characterization of hospitals as providers of professional medical services, not suppliers of products. This characterization was reiterated by the Supreme Court in Murphy v. E.R. Squibb & Sons, Inc. (1985) 40 Cal.3d 672, 221 Cal.Rptr. 447, 710 P.2d 247, which addresses the question whether a pharmacy should be strictly liable for defects in the drugs which it...