Lovett v. Emory University, Inc.

• Decision Date: 06 September 1967
• Docket Number: No. 42909,No. 3,42909,3
• Citation: 156 S.E.2d 923,116 Ga.App. 277
• Parties: , 4 UCC Rep.Serv. 688 L. G. LOVETT et al. v. EMORY UNIVERSITY, INC
• Court: Georgia Court of Appeals

Page 923

156 S.E.2d 923

116 Ga.App. 277, 4 UCC Rep.Serv. 688

L. G. LOVETT et al. v. EMORY UNIVERSITY, INC.

No. 42909.

Court of Appeals of Georgia, Division No. 3.

Sept. 6, 1967.

Syllabus by the Court

1. The furnishing of blood for transfusion by a hospital to a patient is incidental to the service provided by the hospital in the course of treatment, and is not a sales transaction covered by an implied warranty.

2. A petition based solely on the theory of the breach of an implied warranty by a hospital in furnishing infected blood for a transfusion to a patient, who developed serum hepatitis which caused her death, fails to show a cause of action for wrongful death.

Lou G. Lovett, Sr., Lou G. Lovett, Jr., Chisty Lovett, and Roger Lovett, as the widower and children of Mildred Lovett, brought this action in Fulton Superior Court against Emory University, d/b/a Crawford W. Long Memorial Hospital, seeking damages for the death of Mildred Lovett, allegedly caused by serum hepatitis from a blood transfusion given to the deceased as part of her pre-operative procedures while under treatment at the hospital. The action is predicated solely on the theory of a breach of an implied warranty in the sale of blood to the deceased. The plaintiffs appeal from the sustaining of the general demurrer to the petition.

Henritze, Baker & Bailey, Walter M. Henritze, Jr., Atlanta, for appellants.

Hurt, Hill & Richardson, James C. Hill, Atlanta, for appellee.

JORDAN, Presiding Judge.

1. This is a case of novel impression in Georgia, in that the plaintiffs seek to show a cause of action for wrongful death based solely on the alleged breach of an implied warranty arising from the furnishing of blood by a hospital to a patient. After careful consideration of all aspects of the case, we are of the opinion that such a blood transfusion is an incidental part of the service furnished by a hospital in the course of medical treatment (here a pre-operative procedure) and is not a sales transaction under our statutes or otherwise, even if the cost of the blood is specified as a separate item in the charges made. As to the Uniform Commercial Code-Sales we think it is significant that the General Assembly expressly provided that the 'serving for value of food or drink * * * is a sale' of goods (Code Ann. § 109A-2-314 as limited by Code Ann. § 109A-2-102) without expressly including other service-type transactions as covered by any implied warranty.

Various other jurisdictions have considered the issue of recovery for an injury or death caused by a blood transfusion under the theory of a breach of an implied warranty in the sale of the blood. These courts have generally refused to recognize the theory as affording any basis for recovery, adhering to the view that in a blood transfusion service predominates, and that even if a separate charge is made for the blood such charge is not indicative of a sale but is merely an incidental feature of the services rendered.

In 1954 the New York Court of Appeals in the leading case determined that the tranaction was a service and not a sale, and expressly rejected the theory of a breach of an implied warranty to support an action for injuries from serum hepatitis caused by a blood transfusion. Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792. Since that time other states, in identical or similar type cases usually involving hospitals as defendants, have followed the Perlmutter case: Washington, 1956, Gile v. Kennewick Public Hospital District, 48 Wash.2d 774, 296 P.2d 662, 59 A.L.R.2d 761; Utah, 1961, Dibblee v. Dr. W. H. Groves Latter-Day Saints Hospital, 12 Utah 2d 240, 364 P.2d 1085; Texas, 1961, Goelz v. J. K. And Susie L. Wadley Research Institute and Blood Bank, Tex.Civ.App., 350 S.W.2d 573; Wisconsin, 1964, Koenig v. Milwaukee Blood Center, Inc. et al., 23 Wis.2d 324, 127 N.W.2d 50. That same year the federal district court in Colorado reached the same result in considering Colorado law in a case against a hospital involving serum hepatitis injuries; Sloneker v. St. Joseph's Hospital, 233 F.Supp. 105; Minnesota, 1965, Balkowitsch v. Minneapolis Blood Bank, Inc., 270 Minn. 151, 132 N.W.2d 805; Arizona, 1965, Whitehurst v. The American National Red Cross, 1 Ariz.App. 326, 402 P.2d 584. In 1966 the Florida Court of Appeals, Second District, rejected what appears to have been the consistent view...