Moore v. Underwood Memorial Hospital

• Decision Date: 27 January 1977
• Citation: 147 N.J.Super. 252,371 A.2d 105
• Parties: , 21 UCC Rep.Serv. 461 Ralph L. MOORE, Jr., Plaintiff-Appellant, v. UNDERWOOD MEMORIAL HOSPITAL, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 252

147 N.J.Super. 252

371 A.2d 105, 21 UCC Rep.Serv. 461

Ralph L. MOORE, Jr., Plaintiff-Appellant, v. UNDERWOOD MEMORIAL HOSPITAL, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Dec. 20, 1976.

Decided Jan. 27, 1977.

Leo B. Dubler, Woodbury, for plaintiff-appellant (Herman, Pearson, Dubler & Crass, Woodbury, attorneys).

David A. Spitalnick, Atlantic City, for respondent Hugo S. DeLuca, M.D. (Horn, Weinstein & Kaplan, Atlantic City, attorneys).

Aaron Dines, Morristown, for respondent Interstate Blood Bank (Willette & Luongo, East Orange, attorneys).

Before Judges BISCHOFF, MORGAN and E. GAULKIN.

PER CURIAM.

Plaintiff Ralph L. Moore, Jr. instituted this action for damages, alleging that he contracted serum hepatitis as a result of receiving a blood transfusion incident to a surgical procedure performed upon him on October 19, 1971. Recovery was sought from Underwood Memorial Hospital (Hospital), the American Red Cross (Red Cross), Interstate Blood Bank (Interstate) and many named physicians, the only one now pertinent being Dr. Hugo S. Deluca, the attending surgeon.

Plaintiff's complaint alleged liability on the part of the defendants on theories of negligence, strict liability in tort and breach of warranty. Summary judgments were entered in favor of all defendants on all theories. Plaintiff appeals from the summary judgment entered in favor of defendants Interestate and Dr. DeLuca.

We affirm.

On October 19, 1971 Dr. Hugo DeLuca performed a spinal fusion operation on plaintiff at the hospital. During the course of the operation, plaintiff received a transfusion of three units of whole blood. Two of the units were supplied by the Red Cross and one by Interstate. Thereafter, plaintiff developed serum hepatitis which, he alleges, was a result of the transfusion. The Red Cross obtains its blood solely from voluntary sources, whereas Interstate pays its blood donors and is referred to as a 'commercial supplier of blood.' The blood unit used in the transfusion supplied by Interstate was traced to the donor, Woodrow Rickerson.

Plaintiff's claim that defendant Interstate should be held strictly liable is precluded by Brody v. Overlook Hospital, 127 N.J.Super. 331, 317 A.2d 392 (App.Div.1974), aff'd 66 N.J. 448, 332 A.2d 596 (1975). Brody stands squarely for the premise that, in the context of liability for serum hepatitis contracted from blood supplied and used in a blood transfusion, blood is an 'unavoidably unsafe product' within the terms of Restatement, Torts 2d, § 402A Comment K (1966) ¹. As such it is not unreasonably dangerous and the seller thereof is not to be held strictly liable for unfortunate consequences attending its use. See Hines v. St. Joseph Hospital, 86 N.M. 763, 527 P.2d 1075 (1974 Ct.App.). While the Brody court was concerned only with the theory of strict liability in tort, we perceive no basis for a different treatment of the theory of breach of warranty in this context. Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 66, 207 A.2d 305 (1965); Prosser, Law of Torts (4 ed. 1971) § 98; see also, Jackson v. Muhlenberg Hospital, 96 N.J.S.uper. 314, 324, 232 A.2d 879 (Law Div.1967), rev'd 53 N.J. 138, 249 A.2d 65 (1969).

Plaintiff asserts that Brody is not applicable to commercial blood banks who pay their donors, the benefits of its holding being limited to organizations such as the Red Cross which obtains its blood selely from volunteers.

We do not agree. Whether a product qualifies as 'unavoidably unsafe' is to be determined by the nature of the substance. As far as the doctrines of strict liability in tort or breach of warranty are concerned, the source of the substance is simply not relevant.

There remains plaintiff's claim against Interstate on the negligence theory. Plaintiff argues that he should be permitted to submit his case to the jury because an inference of negligence could reasonably be drawn based on the following contentions:

(1) Since Interstate operates for profit, it possesses the motivation for the adoption and use of procedures for securing donors less effective than those used by the Red Cross.

(2) The donor of the Interstate blood has a past social and medical history which makes it likely that the serum hepatitis had its source in his blood.

Plaintiff asserts no facts in support of the former claim and offers nothing to refute Interstate's contention that it employs the very same testing and screening procedures as does the Red Cross.

As to the latter, the record discloses that the donor Rickerson gave blood on many prior occasions and there is no record of any other incident resulting from a transfusion involving his blood, either before or after the donation at issue here.

Moreover, the record establishes that two of the three pints of blood transfused to plaintiff came from the Red Cross, a party against whom plaintiff no longer asserts a claim, and plaintiff concedes that it cannot be medically ascertained which of the three units of blood was, in fact, infected.

Despite extensive discovery, plaintiff is unable to advance any other factual or legal basis in...