St. Luke's Hospital v. Schmaltz, C--505

• Citation: 188 Colo. 353,534 P.2d 781
• Decision Date: 05 May 1975
• Docket Number: No. C--505,C--505
• Parties: , 17 UCC Rep.Serv. 65 ST. LUKE'S HOSPITAL, a Colorado Corporation, Petitioner, v. Margaret E. SCHMALTZ, Respondent.
• Court: Supreme Court of Colorado

Page 781

534 P.2d 781

188 Colo. 353, 17 UCC Rep.Serv. 65

ST. LUKE'S HOSPITAL, a Colorado Corporation, Petitioner, v. Margaret E. SCHMALTZ, Respondent.

No. C--505.

Supreme Court of Colorado, En Banc.

May 5, 1975.

Wood, Ris & Hames, P.C., Eugene S. Hames, Denver, for petitioner.

Mason, Reuler & Peek, P.C., Rosanne M. Hall, Maurice Reuler, Denver, for respondent.

Lewis & Roca, Douglas L. Irish, Paul G. Ulrich, Phoenix, Ariz., for amicus cariae Blood Services.

Charles C. Nicola, Denver, for amicus curiae Bell Bonfils Memorial Blood Center.

LEE, Justice.

Certiorari was granted to review the decision of the Colorado Court of Appeals in Schmaltz v. St. Luke's Hospital, Colo.App., 521 P.2d 787. We reverse the judgment of the court of appeals.

Respondent's claims against petitioner hospital arose out of her contention that she was infected with serum hepatitis as a result of a number of whole blood transfusions given to her without her knowledge or consent during surgical procedures at the hospital. The complaint alleged that the blood transfused was defective and in an unreasonably dangerous condition, thereby resulting in the disease she contracted. She alleged four claims for relief in the nature of negligence, strict liability, res ipsa loquitur, and breach of warranty.

The district court upon motion of petitioner dismissed all claims for relief except that of negligence. Respondent chose not to pursue her negligence claims and upon stipulation this claim was dismissed with prejudice.

Upon appeal, the court of appeals affirmed the dismissal of the res ipsa loquitur claim, but reversed the dismissal of the claims based on strict liability and breach of warranty, and remanded the cause to the district court for further proceedings on those claims.

Since the time of the transaction, in December 1969, which gave rise to the claims for damages in this case, the general assembly enacted section 13--22--104, C.R.S.1973, effective March 11, 1971, which declares the public policy of this state as follows:

'Minors--transplants and transfusions--declaration of policy-- limit on liability. (1) The availability of scientific knowledge, skills, and materials for the transplantation, injection, transfusion or transfer of human tissue, organs, blood, or components thereof is important to the health and welfare of the people of this state. Equally important is the duty of those performing such service or providing such materials to exercise due care under the attending circumstances to the end that those receiving health care will benefit and adverse results therefrom will be minimized by the use of available and proven scientific safeguards. The imposition of legal liability without fault upon the persons and organizations engaged in such scientific procedures may inhibit the exercise of sound medical judgment and restrict the availability of important scientific knowledge, skills, and materials. It is, therefore, the public policy of this state to promote the health and welfare of the people by emphasizing the importance of exercising due care, and by limiting the legal liability arising out of such scientific procedures to instances of negligence or willful misconduct.

'(2) The donation, whether for or without valuable consideration, the acquisition, preparation, transplantation, injection, or transfusion of any human tissue, organ, blood, or component thereof for or to a human being is the performance of a medical service and does not, in any way, constitute a sale. No physician, surgeon, hospital, blood bank, tissue bank, or other person or entity who donates obtains, prepares, transplants, injects, transfuses, or otherwise transfers, or who assists or participates in donating, obtaining, preparing, transplanting, injecting, transfusing, or transferring any tissue, organ, blood, or component thereof from one or more human beings, living or dead, to another living human being for the purpose of therapy or transplantation needed by him for his health or welfare shall be liable for any damages of any kind or description directly or indirectly caused by or resulting from any such activity; except that each such person or entity remains liable for his or its own negligence or willful misconduct.'

We note that in forty-three other states statutes have been adopted which in effect preclude the imposition of legal liability without fault in blood transfusion cases. ¹

The issue presented to us is whether prior to the enactment of the statute a hospital, which furnished defective blood for transfusion to a patient who was injured as a result thereof, was liable either under the doctrine of strict liability or the theory of breach of warranty. This question has not heretofore been considered by this court. The issue of liability, however, under the breach of warranty theory was decided in Sloneker v. St. Joseph's Hospital, 233 F.Supp. 105 (1964 D.C.Colo.), where the court rejected the claim for damages, holding that no Colorado precedent existed to suggest that this court would reach a decision contrary to the majority view which denies such a claim.

There is a split of authority on the question of liability. However, clearly the majority of jurisdictions deny such claims against hospitals or blood banks, based either on the theory of strict liability in tort or breach of warranty: White v. Sarasota County Public Hospital Board, 206 So.2d 19 (1968 Fla.App.), cert. denied, 211 So.2d 215; Hoder v. Sayet, 196 So.2d 205 (1967 Fla.App.); Lovett v. Emory University, Inc., 116 Ga.App. 277, 156 S.E.2d 923; Balkowitsch v. Minneapolis War Memorial Blood Bank, Inc., 270 Minn. 151, 132 N.W.2d 805; Sarah Brody, Executrix, v. Overlook Hospital, 66 N.J. 448, 332 A.2d 596; Baptista v. St. Barnabas Medical Center, 109 N.J.Super. 272, 262 A.2d 902, aff'd, 57 N.J. 167, 270 A.2d 409; Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792, reh. denied, 308 N.Y. 812, 125 N.E.2d 869; Dibblee v. Dr. W. H. Groves Latter-Day Saints Hospital, 12 Utah 2d 241, 364 P.2d 1085; Gile v. Kennewick Public Hospital Dist., 48 Wash.2d 774, 296 P.2d 662, 59 A.L.R.2d 761; Koenig v. Milwaukee Blood Center, Inc., 23 Wis.2d 324, 127 N.W.2d 50. The leading cases allowing such claims are Cunningham v. MacNeal Memorial Hospial, 47 Ill.2d 443, 266 N.E.2d 897, 45 A.L.R.3d 1353; Hoffman v. Misericordia Hospital of...