Silva v. Southwest Florida Blood Bank, Inc., 90-02200

• Decision Date: 26 April 1991
• Docket Number: No. 90-02200,90-02200
• Citation: 578 So.2d 503,16 Fla. L. Weekly 1129
• Court: Florida District Court of Appeals
• Parties: 16 Fla. L. Weekly 1129 Gerald SILVA, as personal representative of the Estate of Anne Marie N. Silva, deceased, Appellant, v. SOUTHWEST FLORIDA BLOOD BANK, INC., Appellee.

Page 503

578 So.2d 503

16 Fla. L. Weekly 1129

Gerald SILVA, as personal representative of the Estate of Anne Marie N. Silva, deceased, Appellant, v. SOUTHWEST FLORIDA BLOOD BANK, INC., Appellee.

No. 90-02200.

District Court of Appeal of Florida Second District.

April 26, 1991.

F. Ronald Fraley of Fraley & Fraley, P.A., and Robert A. Foster, Jr. of Robert A. Foster, Jr., P.A., Tampa, for appellant.

Ted R. Manry, III, D. James Kadyk, and Harold D. Oehler of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.

HALL, Judge.

The appellant, Gerald Silva, as the personal representative of his deceased wife's estate, challenges the order dismissing his cause with prejudice due to the running of the statute of limitations. Silva contends the trial court erroneously applied the medical malpractice statute of limitations because his cause of action sounds in negligence.

In August 1985, Silva's wife received multiple units of cryoprecipitate, a blood component, immediately after the birth of the Silvas' child. In November 1986, Mrs. Silva's blood tested positive for the human immunodeficiency virus, which virus causes acquired immune deficiency syndrome. Mrs. Silva died as a result of an AIDS-related illness in January 1990.

In December 1989, the Silvas filed an action for damages against Southwest Florida Blood Bank, Inc., the supplier of the blood from which the cryoprecipitate provided Mrs. Silva was derived. In response, Southwest filed a motion to dismiss, alleging that it is entitled to rely on section 95.11(4)(b), Florida Statutes (1989), the medical malpractice statute of limitations, because it is a health care provider or, in the alternative, it is in privity with the health care provider hospital at which Mrs. Silva received the cryoprecipitate.

The trial court entered an order granting the motion to dismiss, finding that Southwest is a health care provider, that all of the claims made by Silva arose out of medical or surgical diagnosis, treatment, or care by a health care provider, and that Southwest is therefore entitled to rely on the two-year medical malpractice statute of limitations. The court further found that the limitations period began to run in November or December 1986, and that since the Silvas did not institute their action until December 1989, their action is barred. We agree with the trial court's findings and affirm the order of dismissal.

By this appeal, Silva contends that Southwest is not a health care provider and nothing in section 95.11(4)(b) remotely suggests the legislature intended it to be considered as one. Citing Durden v. Am. Hosp. Supply Corp., 375 So.2d 1096 (Fla.3d DCA 1979), cert. denied, 386 So.2d 633 (Fla.1980), Silva also contends that, even if Southwest were a health care provider, it did not provide medical diagnosis, treatment, or care to his wife as there was no direct contact between Southwest and Mrs. Silva. Rather, Southwest merely sold blood to the hospital at which Mrs. Silva received the transfusion.

Southwest asserts in response that Silva's action against it is an action for medical malpractice because the legislature has defined blood banks as health care providers, Sec. 766.102(1), Fla.Stat. (1989), and has declared the services performed by blood banks to be medical services that are an intricate part of the practice of medicine, ch. 69-157, Laws of Fla. We agree with Southwest's assertions and find further support for them in the amicus brief of the Florida Association of Blood Banks, Inc.

The two-year medical malpractice statute of limitations defines an action for medical malpractice "as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care." Sec. 95.11(4)(b). We find that Silva's second amended complaint states a cause of action for medical malpractice against Southwest. First, the complaint seeks damages based both on a tort claim for negligence and a contract claim for breach of the implied warranties of merchantability and fitness for a particular purpose.

Second, the legislature has defined blood banks as health care providers. Sec. 768.50(2)(b), Fla.Stat. (1977). ¹ Although section 768.50 was repealed in 1986, ch. 86-160, Sec. 68, Laws of Florida, subsection 768.50(2)(b) was not, as it is cross-referenced in subsection 766.102(1), Florida Statutes (1989). See Hecht v. Shaw, 112 Fla. 762, 151 So. 333 (Fla.1933). Section 766.102 defines the standards of recovery in all medical negligence actions. By incorporating the definition of health care provider in subsection 768.50(2)(b) into subsection 766.102(1), the legislature has specifically identified those health care providers against whom actions for medical malpractice may be brought.

Third, with regard to the provision of diagnosis, treatment, or care element of an action for medical malpractice, we acknowledge that at first blush this element seems incapable of satisfaction in this case because Mrs. Silva did not directly receive treatment from Southwest. However, we note that Silva's allegation of negligence implies that Southwest owed a duty toward Mrs. Silva that it breached. That implication reveals that a relationship existed between Southwest and Mrs. Silva despite the lack of direct contact between the two. See Kaiser v. Memorial Blood Center of Minneapolis, Inc., 721 F.Supp. 1073, 1075, n. 3 (D.Minn.1989). Furthermore, notwithstanding this lack of direct contact, we believe the legislature's treatment of blood banks reveals an acknowledgment that blood banks do provide treatment for those who receive their blood. Consequently, as we will explain later, we disagree with Durden and therefore reject Silva's reliance on that case.

In the enacting provision of what has come to be known as the blood shield statute, Sec. 672.316(5), Fla.Stat. (1989), which statute abolished the applicability to blood of the implied warranties of merchantability and fitness for a particular purpose where a defect cannot be detected through the use of reasonable scientific techniques, the legislature declared in pertinent part:

[T]he procurement, processing, storage, 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 provides the general public with a desirable and necessary medical service, and ... the rendering of this service is an intricate part of the practice of medicine....

Ch. 69-157, Laws of Fla. That the enumerated activities are medical services is reflected in the fact that laboratories operated by blood banks are defined as clinical laboratories, Fla.Admin.Code Rule 10D-41.066(1), which are laboratories "where examinations are performed on materials or specimens taken from the human body to provide information or materials for use in the diagnosis, prevention, or treatment of a disease or the assessment of a medical condition," Sec. 483.041(1), Fla.Stat. (1989). To protect the public health, safety, and welfare from improper clinical laboratory performance, the legislature enacted the Florida Clinical Laboratory Law. Secs. 483.011-483.25, Fla.Stat. (1989). That law and its corresponding administrative rules, ...