Heirs of Fruge v. Blood Services

• Citation: 365 F. Supp. 1344
• Decision Date: 25 October 1973
• Docket Number: Civ. A. No. 17297.
• Parties: HEIRS OF Ude C. FRUGE v. BLOOD SERVICES.
• Court: U.S. District Court — Western District of Louisiana

365 F. Supp. 1344

HEIRS OF Ude C. FRUGE v. BLOOD SERVICES.

Civ. A. No. 17297.

United States District Court, W. D. Louisiana, Opelousas Division.

October 25, 1973.

COPYRIGHT MATERIAL OMITTED

J. Michael Morrow, DeVillier & Ardoin, Eunice, La., for plaintiffs.

Richard C. Meaux, Davidson, Meaux, Onebane & Donohoe, Lafayette, La., for defendant.

NAUMAN S. SCOTT, District Judge:

We have diversity jurisdiction of this action seeking to recover damages from Blood Services, a Corporation (hereinafter referred to as "Blood Services"), for the death of plaintiffs' mother, Mrs. Ude C. Fruge. Plaintiffs contend that their mother died as a result of transfusions of blood obtained through Blood Services. Their claims are based on the theory of breach of warranty and upon negligence.

Blood Services has filed a Motion for Summary Judgment predicated upon the following grounds:

1) Blood Services is a charitable organization and therefore is immune from liability for negligence;

2) There can be no recovery in Louisiana under a theory of breach of warranty in a blood transfusion situation;

3) Plaintiffs may not recover on any theory of strict liability in tort; and

4) The Louisiana Wrongful Death article LSA-C.C. 2315 will not support an action based on a theory of breach of implied warranty.

Likewise, Blood Services' insurer, Aetna Casualty & Surety Company (hereinafter referred to as "Aetna") has filed a Motion for Summary Judgment based upon the above grounds numbered 2, 3 and 4.

We shall discuss the various grounds for the motion in the sequence above set forth.

CHARITABLE IMMUNITY

The evidence presented in support of the Motion for Summary Judgment clearly discloses the charitable nature of Blood Services. This evidence, when considered with the Louisiana jurisprudence, unequivocally reveals that it is a charitable institution and consequently immune from suit.

The two affidavits of W. Quinn Jordan, President of Blood Services, identified as Exhibits C and D, as well as Exhibits E, F, G, H, I, J and K, reveal that Blood Services is a charitable, non-profit corporation which provides blood and blood products for sick people, but only through the prescription of their doctors. Although a fee is charged for most units of blood, the funds generated are used to offset the cost of maintaining for the community a constant, dependable supply of blood and to cover the costs of screening, processing and distributing blood and blood products when and where needed. Surplus revenues from its operation are used by Blood Services for education and research, for improvement of scientific and medical techniques for related charitable activities and for the expansion of the geographical areas which Blood Services serves. It is not engaged in any advertising programs designed to stimulate or create a demand for its products, nor does it employ any salesmen or detail men. The Federal Government has recognized for some time the fact that Blood Services is a charitable institution by granting and maintaining Blood Services tax-exempt status.

The test that has been adopted by the courts in Louisiana for determining whether an institution is charitable was first enunciated in Jordan v. Touro Infirmary, 123 So. 726 (La.App.Orl.Cir. 1922) as follows:

"The test which determines whether such an enterprise is charitable, or otherwise is its purpose. If its purpose is to make profit, it is not a charitable enterprise. If it is to heal the sick and relieve the suffering, without hope or purpose of getting gain from its operation, it is charitable." 123 So. 731.

As the above cited affidavits reveal, Blood Services is clearly a benevolent organization. No one makes any profit from the operation of the blood bank. No dividends are paid as there are no stockholders. The primary purpose of the organization is to serve all people, rich or poor. We find that Blood Services adequately and amply meets the test established by the Jordan decision. See also the cases of Thibodaux v. Sisters of Charity of the Incarnate Word, 11 La. App. 423, 123 So. 466 (La.App.2d Cir. 1929); Jurjevich v. Hotel Dieu, 11 So. 2d 632 (La.App.Orl.Cir.1943); D'Antoni v. Sara Mayo Hospital, 144 So.2d 643 (La.App. 4th Cir. 1962); Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969); Barrios v. Sara Mayo Hospital, 224 So.2d 846 (La.App. 4th Cir. 1969).

The affidavit of John D. Alsever, M.D. (Exhibit A) discloses that Blood Services never has a contact with the patient himself. It deals only with the hospital facilities it serves and/or the doctor who prescribes the transfusion. As a result of these facts, plaintiff contends that the doctrine of charitable immunity does not apply in this case because there was no contractual relationship existing between Blood Services and the deceased. We are unable to agree with this contention.

The Louisiana courts have never required that a contract be entered into between the charity and the plaintiff, but only that the plaintiff be a beneficiary of the charity. This was recognized by the Louisiana Supreme Court in Grant v. Touro Infirmary, supra. The Grant decision quotes with approval from American Jurisprudence which indicates that beneficiaries include inmates, patients or others benefiting, or seeking to benefit from the charitable activities of the charity. 15 Am.Jur.2d, Charities, § 163 (1964).

The word "beneficiaries" has been interpreted by Louisiana courts to mean persons who are recipients of the benefits of the charity. Lusk v. United States Fidelity and Guaranty Company, 199 So. 666 (La.App.Orl.Cir.1941). In fact, both paying and nonpaying recipients of services from charitable organizations have been denied recovery against the charity. Jordan v. Touro Infirmary, supra; Unser v. Baptist Rescue Mission, 157 So. 298 (La.App.Orl. Cir.1934); Messina v. Societe Francaise de Bienfaissance, 170 So. 801 (La. App.Orl.Cir.1936); 15 Am.Jur.2d, Charities, § 166 (1964).

We find that Mrs. Fruge was a recipient of the benefits rendered by Blood Services, and that it is a charitable institution immune from an action in tort under LSA-C.C. 2315. Blood Services' motion is granted and the other grounds supporting the motions for summary judgment will be considered only insofar as they apply to the liability insurer, Aetna.

BREACH OF WARRANTY

The package label on each unit of blood supplied by Blood Services contains the following disclaimer of warranty and warning:

"CAUTIONS: Cross match before using. Compare blood group on label with recipient's blood group before administration. Mix thoroughly before using. A filter must be used in administration set. Administer intravenously without warming. Do not add other medication to the bag prior to administration. Do not administer conjointly with dextrose-in-water solution. The blood bank will not assume responsibility for more than one transfusion from this bag. Container is not returnable; discard after use. Average adult dose 500 ml. Federal law prohibits dispensing without prescription.

See circular for instructions for use.

WARNING: Whole blood may transmit certain diseases, such as viral hepatitis, for the presence of which no laboratory tests are available. Be cause of this fact, human blood is delivered without any warranty, whether for merchantability, fitness or otherwise, extending beyond the description on this label."

The Official Package Circular for Blood Services' blood provides the following warning:

"HOMOLOGOUS SERUM JAUNDICE (VIRAL HEPATITIS): The transmission of viral hepatitis is an inherent and unavoidable risk which is present each time a unit of whole blood is given. There is no known laboratory tests which will detect the presence of the virus in the donor blood. The incubation period is usually 15 to 180 days and the disease is sometimes severe and protracted and may be fatal."

In light of the above warnings and disclaimer there can be no liability for breach of an "express warranty". California Chemical Co. v. Lovett, 204 So.2d 633 (La.App. 3rd Cir. 1967). Furthermore, no "implied warranties" attach to the handling, processing, distributing or transfusion of blood or blood products in this state. The Louisiana legislature in 1968 expressed its desire to confirm the "no-warranty" rule in the State of Louisiana, and to insure that under the Louisiana Civil Code, no "new" implied warranty theory could be raised in the blood transfusion setting, when it adopted the following limitations on implied warranties:

"Notwithstanding the provisions of Section A.2 of this article, the implied warranties of merchantability and fitness shall not be applicable 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. Such blood, blood plasma, or tissue or organs shall not for the purposes of this Article be considered commodity subject to sale or barter, but shall be considered as medical services." La. Civil Code, Art. 1764, Section B (LSA-C.C. 1764B) as amended by Act 301 of 1968.

Claimants assert that LSA-C.C. 1764B is unconstitutional, in that it is an ultra vires act of the legislature which violates substantive due process. We find determinative of this issue the case of McDaniel v. Baptist Memorial Hospital, 469 F.2d 230 (6th Cir. 1972), in which the Tennessee statute, almost identical to Article 1764B, was challenged on similar grounds. In upholding the constitutionality of the Tennessee statute, the court stated:

"In sustaining the constitutionality of the Tennessee statute, the District Judge said:

`The burden is, of course, upon the plaintiff here who challenges the Tennessee Statute because it assertedly offends due process and equal protection provisions. The fact that the important service of blood transfusions has been singled out for legislative treatment, and immunity to some degree is bestowed, does not, in and of itself, make it unlawful or unconstitutional. Estrin

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