Sloneker v. St. Joseph's Hospital
| Decision Date | 24 August 1964 |
| Docket Number | Civ. A. No. 8615. |
| Citation | 233 F. Supp. 105 |
| Parties | Delores SLONEKER, Plaintiff, v. ST. JOSEPH'S HOSPITAL, also known as Sisters of Charity of Leavenworth, Kansas, a corporation, Defendant. |
| Court | U.S. District Court — District of Colorado |
Jack Levine and Peter L. Garrett, Denver, Colo., for plaintiff.
T. Raber Taylor, Denver, Colo., for defendant.
This matter is before the Court on the defendant's motion to dismiss for failure to state a claim.
The complaint contains two counts: In the first of these plaintiff alleges that she underwent a medical operation at defendant's hospital in Denver, Colorado; that the defendant or its agents, knew, or should have known, that it would be necessary to administer a blood transfusion to plaintiff during the course of the operation and that it did administer such a transfusion.
A further allegation is that the blood administered to plaintiff was not safe and was unwholesome in that it carried a virus which caused hepatitis, as a result of which plaintiff contracted a condition known as "serum hepatitis."
A further allegation is that there existed between the plaintiff and defendant at the time an implied warranty of wholesomeness and fitness with respect to the blood which was sold and administered to the plaintiff and that defendant has committed a breach of warranty.
The second claim is based upon the alleged negligence in subjecting plaintiff to a high risk of danger in connection with a blood transfusion, a risk involving her contracting a disease known as "serum hepatitis" as the result of the transfusion; that plaintiff was unaware of the danger inherent in a blood transfusion and that the defendant failed to warn her of the existence of the danger and thus violated its duty to her. There is also an allegation in the second claim indicating that plaintiff intends to rely on the doctrine of res ipsa loquitur.
Defendant's contention as to the first claim is that it is predicated upon the existence of a sale and since the giving of a blood transfusion can not upon any hypothesis of fact or law be considered a sale, there can not be a breach of warranty and, therefore, it is on its face insufficient. Thus, the question posed is whether the furnishing of blood by a hospital for a transfusion during the course of an operation constitutes a sale which gives rise to an action for breach of warranty.
All of the cases which have been cited have rejected the idea that a blood transfusion constitutes a sale. They are summarized in an annotation in 59 A.L.R. 770, 777 wherein the author of the annotation notes that liability has been denied on the ground that in a blood transfusion service is the predominant factor and that the extra charge for the blood in no way indicates a sale but is merely an incidental feature of the services rendered.
The definitive case is Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 (1954). Here the New York Court of Appeals concluded that the supplying of blood by the hospital was entirely subordinate to its paramount function of furnishing trained personnel and specialized facilities as part of the endeavor to restore plaintiff's health. In reaching this conclusion it was pointed out that the essence of the relationship between the hospital and patient is that the hospital undertakes to make available human skill and physical material to the patient in an effort to restore his health. The Court reasoned that the contract is clearly one for services and not divisible; that while a title to the blood may be transferred, this does not serve to make such transaction a sale; that where the transfer of profit is merely incidental to rendition of services it does not follow that there is a sale. One analogy cited was that of the painter who contracts to paint a picture. This is said to be a contract for work, labor and services rather than a sale, even though the title to the canvas is actually transferred. Similarly, the furnishing of gravel for a highway does not in essence constitute a sale, but rather a contract to construct the highway. Other analogies cited included the example of the eye glass prescription which the Illinois Supreme Court held did not constitute a sale. See Babcock v. Nudelman, 367 Ill. 626, 12 N.E.2d 635. The opinion of the New York Court of Appeals discussed not only the blood transfusion, but also the administering of drugs and other products by the hospital, placing all of these in the same category, that is, as incidental to service. We need not consider the validity of the dicta that medicines and other items besides blood are strictly part of the service since the only question before us is whether the furnishing of blood as a part of operative procedures constitutes a sale.
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