Providence Hospital v. Truly

• Citation: 30 U.C.C.Rep.Serv. 785,611 S.W.2d 127
• Decision Date: 18 December 1980
• Docket Number: No. 6177,6177
• Parties: 30 UCC Rep.Serv. 785 PROVIDENCE HOSPITAL, Appellant, v. Goldie E. TRULY et vir, Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 127

611 S.W.2d 127

30 UCC Rep.Serv. 785

PROVIDENCE HOSPITAL, Appellant, v. Goldie E. TRULY et vir, Appellees.

No. 6177.

Court of Civil Appeals of Texas, Waco.

Dec. 18, 1980.

Rehearing Denied Jan. 30, 1981.

C. A. Searcy Miller, Ray, Anderson, Shields, Trotti & Hemphill, P. C., Dallas, for appellant.

W. V. Dunnam, Jr., Dunnam, Dunnam, Horner & Meyer, Waco, for appellees.

HALL, Justice.

On May 14, 1975, appellee Mrs. Goldie E. Truly submitted to cataract surgery on her right eye by Dr. Stanley Hersh, an ophthalmologist selected by her, while she was a patient in appellant Providence Hospital for that purpose. The final act in the surgery was the injection into the eye of a fluid drug known as "Miochol." The injection was made by Dr. Hersh through the needle of a syringe inserted between sutures which had closed the surgical incision. The vial containing the Miochol was supplied to the surgery room by appellant from appellant's hospital pharmacy. In the surgery room the vial was sterilized by the "circulating nurse," who was an employee of appellant in charge of the surgery room, by placing the vial in a pan of liquid germicide known as "Bard-Parker solution" for approximately thirty minutes immediately prior to the beginning of the operation. The primary ingredient in the Bard-Parker solution was the caustic formaldehyde. After the sterilization was completed, the circulating nurse removed the vial from the Bard-Parker solution and placed it in a pan of sterile water for rinsing. In turn, at the proper time, Dr. Hersh's nurse assistant then rinsed and dried the vial prior to withdrawing the Miochol into a syringe which was furnished by appellant for Dr. Hersh's use in making the injection.

The evidence in this case shows without contradiction that soon after the operation the vial in question was inadvertently discarded by appellant's employees, probably by janitors, and that the vial could not thereafter be found. Nevertheless, proof was adduced on the trial that the Miochol injected into Mrs. Truly's eye from the vial was contaminated with the Bard-Parker solution, and that this resulted in injury to the eye and required additional corrective surgery performed on the eye. Appellees Mrs. Truly and her husband filed this suit for their damages against Cooper Laboratories, Inc., the alleged manufacturer of the Miochol, and against appellant hospital. Appellees' basic premise was that the stopper on the bottle was loose when the bottle was placed in the Bard-Parker solution. They pleaded causal negligence against both defendants. Their negligence action against appellant was based upon the failure of appellant's circulating nurse to discover the contamination, and also upon the ground that the syringe which appellant provided to Dr. Hersh for the injection was "glazed" from extended prior use and thereby prevented discovery of the contamination by Dr. Hersh or his assistant before the injection. Appellees also pleaded an action against appellant under the Texas Deceptive Trade Practices Consumer Protection Act (V.T.C.A., Bus. & C. § 17.41 et seq.) based upon breach of implied contractual warranty stemming from an alleged sale of the Miochol to appellees by appellant, and they sought treble damages and attorneys' fees provided under the Act in connection with that cause.

Appellant answered appellees' suit, and it also pleaded an action for full indemnity, or alternatively for contribution, against Cooper Laboratories, Inc., and against Warner-Lambert Pharmaceutical Company, alleging that those companies "were the manufacturers of the vial and Miochol in question."

Prior to the commencement of the trial, appellees entered into a settlement agreement with Cooper Laboratories and with the third-party defendant Warner-Lambert Pharmaceuticals, under which Cooper and Warner-Lambert each agreed to pay $17,500.00 to appellees for a total settlement of $35,000.00. Appellees' suit against appellant, and appellant's third-party action against Cooper Laboratories and Warner-Lambert Pharmaceuticals, were then tried to a jury.

The case was submitted to the jury on special issues. However, no issues were submitted relating to appellant's third-party suit against Cooper and Warner-Lambert.

The jury failed to find that appellant was guilty of negligence, but the following findings were made in appellees' favor on the breach of warranty action:

Special Issue No. 1: At the time the bottle was placed into the tray of sterile water from the Bard-Parker solution by the circulating nurse, "said bottle of Miochol was not reasonably fit for the purpose intended."

Special Issue No. 2: The failure of the bottle of Miochol to be reasonably fit for the purpose intended was a producing cause of the injury to Mrs. Truly's eye.

Special Issue No. 3: The Miochol was contaminated at the time it was injected into Mrs. Truly's eye.

Special Issue No. 13: $15,000.00 would fairly and reasonably compensate plaintiffs for the injury to Mrs. Truly's eye.

Special Issues Nos. 14, 15, and 16: Reasonable attorneys' fees for plaintiffs' attorneys' services would be $6,000.00 through the trial court, $2,500.00 for an appeal to the Court of Civil Appeals, and an additional $2,000.00 for an appeal to the Texas Supreme Court.

Judgment was rendered on the verdict awarding appellees recovery on their deceptive trade practice action against appellant for their actual damages, trebled, and for attorneys' fees. The judgment also provided that appellant take nothing on its suit for contribution and indemnity against Cooper Laboratories and Warner-Lambert Pharmaceuticals. We shall notice the judgment in greater detail, later.

Appellees' deceptive trade practice action was particularly based upon the provisions of § 2.315 and certain parts of § 17.50 of the Texas Business and Commerce Code (V.T.C.A., Bus. & C.). § 2.315, a part of the Uniform Commercial Code as adopted in Texas, provides as follows:

"Where the seller (of goods) at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose."

§ 17.50 is a part of the Texas Deceptive Trade Practices Consumer Protection Act. At the times pertinent to this lawsuit § 17.50(a)(2) provided that a consumer could base an action under the Act upon the breach of an express or implied warranty which was the producing cause of actual damages; and § 17.50(b)(1) provided that if the consumer prevailed in his action he was entitled to recover three times the amount of actual damages, court costs, and attorney's fees. § 17.44 provides that the Act "shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty."

The record shows without contradiction that appellant hospital knew the particular purpose for which the Miochol was required in the surgical operation in question, and that appellees and Dr. Hersh were relying on appellant to select and furnish the Miochol in a state suitable for injection into Mrs. Truly's eye. Appellant does not assert otherwise.

Appellant contends the evidence in the case is legally insufficient, or alternatively factually insufficient, to establish a "sale" of the Miochol to appellees by appellant within the provisions of § 2.103(a)(4) and § 2.106(a) of the Business and Commerce Code which provide, respectively, that a "seller" is "a person who sells or contracts to sell goods," and that "a 'sale' consists in the passing of title from the seller to the buyer for a price." We overrule these contentions. During the course of Dr. Hersh's cross examination by appellant's counsel, appellant introduced into evidence a statement of appellant's charges to appellees. The statement was handed to Dr. Hersh, and he was asked "There's no charge on there for Miochol, is there?" He answered, "I don't see anything labeled Miochol." Dr. Hersh's answer was correct; the statement does not contain any item labeled "Miochol." Nevertheless, there is an entry on the bill dated May 14, 1975, the day of Mrs. Truly's surgery, for "DRSG-EYE-PDHS7" with a corresponding charge of $2.40. The only evidence of any "eye drug" furnished to Mrs. Truly on the day of surgery was the evidence relating to the Miochol. The proof does show that the surgery was performed under local anesthesia and that the anesthetics used by Dr. Hersh for that purpose were furnished by appellant, but appellant's statement of charges contains a separate entry for "ANESTHESIA" made on the day of surgery with a charge therefor of $7.50. Additionally, Mr. Truly testified that he expected appellant to furnish whatever drugs and supplies were necessary in the operating room as "they always had," and that he expected to have to pay the hospital for those items or for anything furnished to Mrs. Truly from appellant's pharmacy. We also agree with appellees that the testimony of appellant's circulating nurse who was in charge of the surgery room may be reasonably construed as showing that a patient in the hospital will be charged for all medicines used in the surgery room, and that the charges will be included somewhere in the patient's bill.

We have reviewed the entire record. Under the tests set forth in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1952), we hold the evidence is legally and factually sufficient to establish a sale of the Miochol by appellant to appellees within the meaning of the statutory provisions.

Appellant also contends that under the circumstances it was a "health-care provider of medical services" in the furnishing of the Miochol to appellees and not a seller of the drug within the meaning of...