McDaniel v. Baptist Memorial Hospital
Decision Date | 26 October 1972 |
Docket Number | No. 72-1094.,72-1094. |
Parties | Kay McDANIEL, Plaintiff-Appellant, v. BAPTIST MEMORIAL HOSPITAL, Defendant-Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
Hal Gerber, Memphis, Tenn., for plaintiff-appellant; Gerber & Gerber, Memphis, Tenn., Robert B. Branch, Branch, Adair & Thompson, Paragould, Ark., on brief.
Gavin M. Gentry, Memphis, Tenn., for defendant-appellee; Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Memphis, Tenn., on brief.
Before CELEBREZZE and PECK, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.
O'SULLIVAN, Senior Circuit Judge.
Plaintiff-appellant, Kay McDaniel, widow of William Thomas McDaniel, brought suit against defendant Baptist Memorial Hospital for the alleged wrongful death of her husband, William Thomas McDaniel. It was charged in the complaint that William McDaniel died on February 5, 1970, from serum hepatitis as a consequence of blood transfusions given him on November 25, 1969, while a patient in the Baptist Memorial Hospital in Memphis, Tennessee. The complaint averred in several paragraphs as follows:
Notwithstanding the foregoing allegations, the complaint did not charge, nor does appellant's address to us charge, the hospital with negligence or any breach of duty, but relied entirely upon its position that "the defendant hospital is strictly liable in tort to plaintiff by reason of the facts hereinabove alleged." Plaintiff's total reliance is and was upon the foregoing charge of strict liability in tort, and we are not here required to consider whether a cause of action for negligence might be asserted in this case.
The District Judge granted defendant's motion to dismiss for failure of the complaint to state a cause of action.
We affirm.
In granting defendant's motion, the District Judge relied in part upon Tennessee Code Annotated, Section 47-2-316(5), which provides:
The issues on the appeal before us are stated in appellant's brief as follows:
The Court did remand in Jackson for a jury trial on the basis of negligence and also on the theory of breach of an expressed warranty contained on the bottles of blood furnished by the commercial blood bank which stated that the blood was procured by using the "utmost of care in the selection of donors."
In the last case relied upon by appellant, Hoffman, supra, 267 A.2d 867, the Court did not decide the question of whether the furnishing of blood constitutes a sale or a service. The case was remanded for a jury trial based on the theory that the transfer of blood gave rise to an implied warranty, but the Court, as was the case in Cunningham and Jackson, did not have to overcome a statute such as the Tennessee one we have before us. Factually these cases lend little support to the plaintiff's position.
Restatement of the Law considers the matter of strict liability under "Topic 5, Strict Liability," and then goes on to say in Section 402A:
From the foregoing, it appears that Restatement, § 402A, imposes "Strict Liability" or "Liability Without Fault" only upon "One who sells any product in a defective condition"; and it is clear that Tennessee in passing its above-quoted statute, did so deliberately to protect hospitals from "liability without fault." The District Judge's opinion states that the intention of such statute was to "exempt entities such as the defendant Hospital from strict liability in regard to transfusion of blood, blood products, plasma, and other human tissues."
Apart from legislative enactment that a hospital's transfusing blood into a patient is not a sale, a much cited case came to the same conclusion unaided by statutory pronouncement. In the case of Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 (1954), the plaintiff did not rely on negligence, but sought recovery upon a theory that supplying blood by transfusion constituted a sale with the implied warranty that the blood was reasonably fit for the purpose of its intended use. The Court of Appeals of New York by divided holding said:
"In this case, it is plain that what the complaint alleges and truly describes is not a purchase and sale of a...
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