Hoffman v. Misericordia Hospital of Philadelphia

• Citation: 439 Pa. 501,267 A.2d 867
• Parties: Beryl E. HOFFMAN, Administrator of the Estate of Margaret Theresa Sullivan, Deceased, Appellant, v. MISERICORDIA HOSPITAL OF PHILADELPHIA (a Corp.) and American National Red Cross and National Blood Service of Philadelphia, Ind. and d/b/a National Blood Service.
• Decision Date: 02 July 1970
• Court: United States State Supreme Court of Pennsylvania

267 A.2d 867

439 Pa. 501

Beryl E. HOFFMAN, Administrator of the Estate of Margaret

Theresa Sullivan, Deceased, Appellant,
v.
MISERICORDIA HOSPITAL OF PHILADELPHIA (a Corp.) and American

National Red Cross and National Blood Service of Philadelphia, Ind. and d/b/a National Blood Service.

Supreme Court of Pennsylvania.

July 2, 1970.

[439 Pa. 502] David C. Harrison, Mitchell A. Kramer, Philadelphia, Kramer & Harrison, Philadelphia, of counsel, for appellant. [267 A.2d 868]

Francis E. Shields, Dolores B. Spina, Philadelphia, Pepper, Hamilton & Scheetz, Philadelphia, of counsel, for appellee Misericordia Hospital of Philadelphia.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

[439 Pa. 503] OPINION

EAGEN, Justice.

This action in assumpsit instituted against the Misericordia Hospital of Philadelphia (Hospital), the American Red Cross and the National Blood Service of Philadelphia seeks damages for death allegedly caused by a transfusion of impure blood.

The Hospital filed preliminary objections to the complaint in the nature of a demurrer, contending that the complaint did not state a valid cause of action. These preliminary objections were sustained in the court below, and the action was 'dismissed' as to the Hospital. From this order the plaintiff appealed. ^[1]

The complaint alleged, inter alia, that Margaret Sullivan, plaintiff's decedent, was admitted as a medical patient to the Hospital on May 2, 1967 where she remained until May 10, 1967; that during this period the Hospital 'sold' to the decedent 'for a consideration' quantities of blood which were transfused into her circulatory system; that the blood, in part, was obtained from the Hospital's own blood bank; and that as a result of the transfusions the decedent contracted serum hepatitis, which caused her death on June 29, 1967.

The action is based on the alleged breach by the Hospital of the implied warranty of merchantability and/or the implied warranty of fitness for the particular purpose.

In determining whether a demurrer should be sustained and the complaint dismissed, the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. King v. U.S. Steel Corp., 432 Pa. 140, 247 A.2d 563 (1968); Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A.2d 262 [439 Pa. 504] (1951). In considering the demurrer, every well-pleaded material fact set forth in the complaint, as well as all inferences reasonably deducible therefrom, must be taken to be admitted. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Mistick v. Cammack, 397 Pa. 296, 154 A.2d 588 (1959). A demurrer does not, however, admit the pleader's conclusions of law. Eden Roc Contry Club v. Mullhauser, 416 Pa. 61, 204 A.2d 465 (1964); Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Of course, where the complaint shows on its face that the claim is devoid of merit, the demurrer should be sustained. Greenberg v. Aetna Insurance Co.,427 Pa. 511, 235 A.2d 576, cert. denied Scarselletti v. Aetna Cas. & Sur. Co., 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1967). But if there is any doubt as to whether the demurrer should be sustained, such doubt should be resolved in favor of refusing to enter it. Sun Ray Drug Co. v. Lawler,supra; Moran v. Bair, 304 Pa. 471, 156 A. 81 (1931).

Whether a hospital should be liable in assumpsit for breach of an implied warranty of merchantability and/or for breach of an implied warranty of fitness for a particular purpose due to death caused by a transfusion of blood containing hepatitis virus is an issue of first impression in the appellate courts of Pennsylvania. Various other states have rendered decisions on or related to this issue, but none has so far explicitly determined that a hospital is liable for such an occurrence.

In most instances, liability of the hospital has been denied on the authority of [267 A.2d 869] Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 (1954). ^[2] The [439 Pa. 505] New York Court of Appeals (in a 4--3 decision) there reasoned that the transfer of whole blood for the purpose of transfusion, even for a consideration, is an incident to the paramount function of the hospital of providing medical services by making available the human skill and physical materiel by means of which the patient's health may be restored. Thus the overall contractual relationship between the hospital and the patient is viewed as one for services to which concepts of sale are not applicable, even with respect to transfers of individual healing materials for separate consideration. The Majority of the Court further reasoned that implied warranties of merchantability and fitness for a particular purpose arise from sales, and thus concluded that no such warranties could arise in this situation. ^[3]

The Perlmutter analysis has been criticized, ^[4] questioned ^[5] and rejected ^[6] . Some courts, including possibly [439 Pa. 506] those in New York itself (See Carter v. Inter-Faith Hospital of Queens, 60 Misc.2d 733, 304 N.Y.S.2d 97 (1969)), have followed Perlmutter as to hospital defendants but have rejected it as to commercial blood banks. ^[7] [267 A.2d 870]

Although one...