Hoder v. Sayet
| Citation | 196 So.2d 205 |
| Decision Date | 31 January 1967 |
| Docket Number | 65--1014,Nos. 65--1013,s. 65--1013 |
| Parties | Marilyn L. HODER, Appellant, v. Maxwell M. SAYET, M.D., d/b/a Atlantic Clinical Lab., and North Miami General Hospital, Inc., a Florida corporation, Appellees. |
| Court | Court of Appeal of Florida (US) |
Thomas J. Gaine, Miami, for appellant.
Carey, Dwyer, Austin, Cole & Stephens and Edward A. Perse, Miami, for Sayet.
Dean, Adams, George & Wood and George E. Bunnell, Miami, for North Miami General.
Before CARROLL, BARKDULL and SWANN, JJ.
The plight of the plaintiff, Marilyn L. Hoder, pushed to the brink of defeat by an adverse summary judgment, is reminiscent of that of the children of Israel when they were trapped against the sea by the pursuing Egyptians, only to be saved by the hand of the Lord opening the sea before them. 1
The plaintiff here finds her sea suddenly opened before her by two recent Supreme Court decisions. 2
The Defendant, Maxwell M. Sayet, M.D., d/b/a Atlantic Clinical Lab, a commercial blood bank, supplied whole blood with which the defendant, North Miami General Hospital, Inc., administered a transfusion to the plaintiff's husband while he was a patient in the hospital. The plaintiff alleged that the blood given her husband was impure and caused him to contract homologous serum hepatitis from which he subsequently died. She sought recovery for his alleged wrongful death against both the hospital and the blood bank on theories of implied warranty and negligence. Summary judgments were entered in favor of both defendants and the plaintiff now appeals.
On appeal, we must consider the following points:
1) Whether there is an implied warranty by a commercial blood bank, or a purchaser hospital, that the blood sold and used for transfusions is fit for human use.
2) Whether the plaintiff's allegations of negligence on the part of either the blood bank or the hospital were sufficient to state a cause of action against either or both of them.
3) Was there any genuine issue as to any material fact so as to preclude the entry of a summary final judgment for the hospital or the blood bank?
We first discuss the alleged 'implied warranty of fitness' of the blood by the hospital and the blood bank.
Judge Shannon, in Russell v. Community Blood Bank, Inc., Fla.App.1966, 185 So.2d 749, has given this question a scholarly and thorough discussion, and has noted that the transfer of blood by a hospital to a patient is generally considered a 'service' as opposed to a 'sale,' and that the allegation of a breach of an implied warranty would not state a cause of action against the hospital. The opinion held, however, that a blood bank which supplied blood to a patient for a consideration Has made a 'sale' and that there may be a cause of action stated against it for breach of an implied warranty. We concur.
The Russell case, in what may have been dicta (since the only question was whether the complaint stated a cause of action) seemed to indicate that although the plaintiff may state a cause of action for breach of an implied warranty by the blood bank, recovery would be limited to only those injuries caused by failure to detect or remove a deleterious substance capable of detection or removal. This position offers great hope to the blood bank here, as it argues most persuasively that 'if * * * a medical and factual showing is made by the defendant that the serum hepatitis virus is undetectable and unremovable, this would, as a matter of law, be a complete defense to an action predicated on breach of implied warranty.' The blood bank points to evidence that such may be the case here.
Viewing the record in the light most favorable to the plaintiff, as we must here, and drawing from it every favorable inference, it seems that even though there may be no way to detect or eliminate the hepatitis virus once the blood has been taken, a jury might well find that the risk of its being present could have been greatly minimized through more careful screening of donors.
The fact that a drug product may be 'unavoidably unsafe' does not license its processor to disregard all standards of care and precaution, merely because he is secure in the knowledge that he does not impliedly warrant it against its 'unavoidable' defects. The Florida Supreme Court, in McLeod v. W. S. Merrell Co., 1965, 174 So.2d 736, 739, has imposed a limited set of warranties upon a retail druggist filling prescriptions:
'* * * (T)he rights of the consumer can be preserved and the responsibilities of the retail prescription durggist can be imposed, under the concept that a druggist who sells a prescription warrants that (1) he will compound the drug prescribed; (2) he has used due and proper care in filling the prescription (failure of which might also give rise to an action in negligence); (3) the proper methods were used in the compounding process; (4) the drug has not been infected with some adulterating foreign substance. * * *'
The same rationale should be applied to processors of blood which is to be used by purchasers for transfusions into human beings. Blood banks must take necessary precautions in selecting donors and processing the blood.
It appears that the blood used in the Hoder transfusion was obtained by the blood bank from two donors, one of whom gave a fictitious name and address and was never located. The other donor, Albanese, was located and deposed concerning the procedures followed by the blood bank in the taking of his blood.
A blood bank, in order to be accredited by the proper authorities, is required to ask certain questions concerning the donor's general health, well being, diseases and other relevant matters before taking his blood. Albanese testified by deposition that he was asked none of these questions prior to the taking of his blood by the blood bank. Even though Albanese stated that he would have answered any such questions in the negative, a jury might reasonably infer that there had been a similar failure to screen the other donor at the time his blood was taken and that this amounted to a breach of the blood bank's implied warranty to take necessary precautions to minimize the risk of obtaining impure blood.
Having determined that a cause of action for breach of implied warranty was stated against the blood bank, but not the hospital, and that the blood bank had failed to carry the burden of proving conclusively the non-existence of a material issue of fact so as to be entitled to a summary judgment, we now...
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