McDonald v. Sacramento Medical Foundation Blood Bank

• Citation: 133 Cal.Rptr. 444,62 Cal.App.3d 866
• Court: California Court of Appeals Court of Appeals
• Decision Date: 18 October 1976
• Parties: Charles I, McDONALD, Plaintiff and Appellant, v. SACRAMENTO MEDICAL FOUNDATION BLOOD BANK et al., Defendants and Respondents. Civ. 15546.

Page 444

133 Cal.Rptr. 444

62 Cal.App.3d 866

Charles I, McDONALD, Plaintiff and Appellant, v. SACRAMENTO MEDICAL FOUNDATION BLOOD BANK et al., Defendants and Respondents.

Civ. 15546.

Court of Appeal, Third District, California.

Oct. 18, 1976.

Hearing Denied Dec. 17, 1976.

Leverenz & Ward, Chico, for plaintiff and appellant.

Tweedy, Ferris & Duncan Sacramento, for defendant and respondent hospital.

Wilke, Sapunor, Fleury & Hoffelt, Sacramento, Hassard, Bonnington, Rogers & Huber, San Francisco, for defendant and respondent Sacramento Medical Foundation Blood Bank.

PARAS, Associate Justice.

A 45-year-old woman underwent a routine hysterectomy at Feather River Hospital in Chico on September 28, 1970. The operation itself was successful, but she died three months later of serum hepatitis contracted from a blood transfusion administered during the surgical procedure. Her husband filed this wrongful death action against the doctors, the hospital, and the supplier of the blood, a nonprofit community blood bank. He alleged causes of action in strict liability, breach of warranty, and negligence.

The trial court sustained defendants' demurrers to the strict liability and breach of warranty causes of action; and on May 3, 1973, the court denied plaintiff's petition for a writ of mandate (3 Civ. 14005). The case proceeded to a jury trial on May 19, 1975, on the negligence theory, with a resulting defense verdict. Plaintiff appeals from the ensuing judgment, limiting the issues on appeal to the rulings on strict liability and breach of warranty.

I

Plaintiff is confronted by dispositive statutory and case law. Health and Safety Code section 1606 (enacted in 1955 as § 1623) states that: 'The procurement, processing, distribution, or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing the same, or any of them, into the human body shall be construed to be, and is declared to be, for all purposes whatsoever, the rendition of a service by each and every person, firm, or corporation participating therein, and shall not be construed to be, and is declared not to be, a sale of such whole blood, plasma, blood porducts, or blood derivatives, for any purpose or purposes whatsoever.'

The leading case dealing with strict liability for blood transfusion hepatitis is Perlmutter v. Beth David Hospital (1954) 308 N.Y. 100, 123 N.E.2d 792. The New York court held that there was no strict liability because the contractual relationship between a hospital and a patient was one for the rendition of services; the furnishing of blood, even though a charge was made for it, was held not to be a 'sale.'

Section 1606 was a direct result of the Perlmutter decision and was intended to codify its rule for this state. Forty-two other states have now followed California's lead in adopting the Perlmutter rule by statute. (See Comment, 24 Am.U.L.Rev. 367, 403--405.) The statutes have been uniformly interpreted to prevent the imposition of strict liability, most recently in St. Luke's Hospital v. Schmaltz (1975) 534 P.2d 781 (Colorado); Williamson v. Memorial Hospital of Bay County (1975) 307 So.2d 199 (Fla.App.); McKinstrie v. Henry Ford Hospital (1974) 55 Mich.App. 659, 223 N.W.2d 114; and Shepard v. Alexian Brothers Hosp. (1973) 33 Cal.App.3d 606, 109 Cal.Rptr. 132. ¹

Despite this impressive array of authority, plaintiff argues that we are not bound by the declaration in Health and Safety Code section 1606 that a blood transfusion is not a sale. It is all too clear, however, that the Legislature intended to adopt the Perlmutter rule in California and to foreclose this very argument. We shall not tamper with such a clearly stated legislative policy.

II

Plaintiff argues that section 1606 merely classifies blood and blood products as a service without affecting the question of strict liability; we are therefore free, he maintains, to impose strict liability on the Service of supplying blood.

Commentators have noted this potential 'loophole' in the statute (see e.g., Franklin, 'Tort Liability for Hepatitis: An Analysis and a Proposal,' 24 Stan.L.Rev. 439, 476 (1972) ; Frumer and Friedman, 2 Products Liability, § 16.04(3)(b) (1975).) The Shepard court itself appears to have treated the question as an open one. See 33 Cal.App.3d at p. 610 et seq., 109 Cal.Rptr. 132.

A recent law review article supports the argument, using the following words: 'There are several reasons that suggest the legislature did not intend that the statute completely prohibit California courts from applying strict liability. First, the express language of the statue is clear and only requires that blood transfusions be deemed services. Secondly, the legislature has refused to pass a statute that would expressly (and literally) prohibit the application of strict liability or warranty to blood services. Cal.A.B. 2889 (April 16, 1971) provided that 'No person shall be entitled to civil damages for injuries sustained as the result of contracting hepatitis by reason of a blood transfusion either in strict liability or warranty.' Finally, the legislature knew when it passed the statute that it would not guarantee immunity from liability without fault, because te California Supreme Court had already applied the strict liability of warranty to services. Aced v. Hobbs-Sesack Plumbing Co., 55 Cal.2d 573, 12 Cal.Rptr. 257, 360 P.2d 897 (1961). Had the legislature intended to grant complete immunity, the Aced decision would have required it to so state in the statute. Rather, it appears that the legislature wished to allow the courts to apply liability without fault to blood services if they so wished.' (Comment, 'Strict Liability--The Medical Service Immunity and Blood Transfusions in California,' 7 U.C.D.L.Rev. 196, 202, fn. 31 (1974). See also fn. 53 of the same article for additional authority.)

We are not persuaded. The Legislature's intent in failing to pass the proposed bill is at best equivocal. Moreover, the Aced case was decided After section 1606 was enacted in 1955; although the latter was recodified in 1963, there is no indication that the Legislature reconsidered its substance at that time. Furthermore, the Aced holding that implied warranties apply to contracts for labor and materials, 55 Cal.2d at p. 582, 12 Cal.Rptr. 257, 360 P.2d 897, has not been followed since the case was decided, the later cases relying upon the statement in Gagne v. Bertran (1954) 43 Cal.2d 481, 487, 275 P.2d 15, 20, 'that those who sell their services for the guidance of others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct.' (See Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 978, 95 Cal.Rptr. 381; Silverhart v. Mount Zion Hospital (1971) 20 Cal.App.3d 1022, 1028, 98 Cal.Rptr. 187. See also Slayton v. Wright (1969) 271 Cal.App.2d 219, 237, 76 Cal.Rptr. 494.)

Although these cases have been criticized (see 'Products and the Professional: Strict Liability in the Sale-Service Hybrid Transaction' 24 Hastings L.J. 111; Silverhart v. Mount Zion Hospital, A Re-examination of the Hospital-Patient Relationship' 5 S.W.L.Rev. 297), all of the critics seem to agree with the proposition that strict liability should Not be applied to true services; their objection is to an arguable mischaracterization of facts indicating a sale as a service. The question once again is whether we may characterize the transaction before us as a sale. The answer again is no, because section 1606 has foreclosed such a characterization. As stated earlier, we do not second-guess clearly-expressed legislative enactments.

III

Plaintiff's final argument asserts that as above interpreted, section 1606 constitutes a denial of equal protection of the law because the classification of blood differently from other products is not rational. In support of this argument, plaintiff cites Brown v. Merlo (1973) 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, which held California's 'guest statute' unconstitutional. In doing so, the Brown court restated the general rule that a classification "'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." (Reed v. Reed (1971) 404 U.S. 71, 75--76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225.)' (Emphasis in original.) 8 Cal.3d at p. 861, 106 Cal.Rptr. at p. 392, 506 P.2d at p. 216.

Generally, the courts have upheld legislative classifications, presuming their constitutionality, and requiring only that the discrimination bear some rational relationship to a conceivable public purpose. (Dandridge v. Williams (1970) 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 80; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10.) Statutes limiting recoveries have generally been upheld in such fields as workmen's compensation (Western Indemnity Co. v. Pillsbury (1915) 170 Cal. 686, 151 P. 398); the limitation of shipowner's liability, (see 46 U.S.C. 183; Old Dominion Steamship Co. v. Gilmore (1907) 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264); wrongful death statutes (Carroll v. Missouri Pacific Railway Co. (1885) 88 Mo. 239; Stucki v. Loveland (1972) 94 Idaho 621, 495 P.2d 571); and the limitation of liability of newspaper and radio stations in libel actions (Werner v. Southern Cal. etc., Newspapers (1950) 35 Cal.2d 121, 216 P.2d 825).

Defendant cites three cases as having ruled upon the constitutional issue and upheld the legislation, Heirs of Fruge v. Blood Services (5th Cir. 1975) 506 F.2d 841, 843; McDaniel v. Baptist Memorial Church (6th Cir. 1972) 469 F.2d 230, 231; and McKinstrie v. Henry Ford Hospital (1974) 55 Mich.App. 659, 223 N.W.2d 114. Of the three, only McDaniel actually dealt with the equal protection argument, the other two involving due process and immunity under the Louisiana...