State ex rel. American Medical Intern., Inc. v. Sweeney, 18219

• Citation: 845 S.W.2d 648
• Decision Date: 23 December 1992
• Docket Number: No. 18219,18219
• Parties: STATE of Missouri, ex rel. AMERICAN MEDICAL INTERNATIONAL, INC., and Notami Hospitals of Missouri, Inc., Relators, v. The Honorable J. Miles SWEENEY, Judge of the Circuit Court of Greene County, Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 648

845 S.W.2d 648

STATE of Missouri, ex rel. AMERICAN MEDICAL INTERNATIONAL INC., and Notami Hospitals of Missouri, Inc., Relators, v. The Honorable J. Miles SWEENEY, Judge of the Circuit Court of Greene County, Missouri, Respondent.

No. 18219.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 23, 1992.

Motion for Rehearing or to Transfer

Denied Jan. 14, 1993.

Application to Transfer Denied Feb. 23, 1993.

PRELIMINARY ORDER IN PROHIBITION QUASHED AND PETITION IN PROHIBITION DISMISSED.

Timothy J. Phillips, Don V. Kelly, Phillips & Phillips, St. Louis, for relators.

M. Douglas Harpool, Craig A. Smith, Daniel, Clampett, Lilley, Dalton, Powell & Cunningham, Springfield, for respondent.

PER CURIAM.

The court being of the opinion that the preliminary order in prohibition issued herein was improvidently granted, it is ordered that said preliminary order be quashed and the petition in prohibition be dismissed. State ex rel. Douglas Toyota v. Keeter, 804 S.W.2d 750, 752[1-4] (Mo. banc 1991); State ex rel. Collins v. Edwards, 652 S.W.2d 98 (Mo. banc 1983).

MAUS, Judge, dissenting.

I dissent. The following is an outline, gleaned from the record, of the factual basis for my dissent. In the underlying action, plaintiffs, Nina Evelyn Wright-Burdette (Lyn) and Jon Paul Burdette (Jon), her husband, seek to recover against defendants-relators, American Medical International, Inc., and Notami Hospitals of Missouri, Inc., damages for personal injuries to Lyn, resulting from two defective temporal mandibular joint interpositional implants ("TMJ implants"). The allegations of liability in the petition were as follows:

"15. That on or about July 31, 1984, Defendant AMI sold/and or transferred for purposes of Mo.Rev.Stat. 537.760 two temporal mandibular joint interpositional implants (hereinafter referred to as "TMJ implants") manufactured by Vitek, Inc., to Lyn.

16. That on or about July 31, 1984, Lyn underwent TMJ surgery at Springfield Community Hospital wherein two TMJ implants manufactured by Vitek, Inc., and supplied by Defendant AMI were implanted into Plaintiff.

17. That the proplast implants were defective in that they were designed and manufactured with materials including but not limited to Teflon that caused the implants to break apart, fragment, and function improperly.

18. That the proplast implants were used in a manner reasonably anticipated.

19. That Defendant AMI had no reason to believe that those for whose use the implant was supplied would realize its dangerous condition.

20. That the implants when supplied by Defendant AMI to Lyn were in a defective condition and were unreasonably dangerous when put to a reasonably anticipated use."

The respondent frames the issues by acknowledging the petition states a claim based upon the doctrine of "strict liability", not negligence. The petition was filed November 13, 1991. Relators first filed a motion to dismiss the petition for the reason it failed to state a cause of action. This motion was denied. Thereafter, on March 25, 1992, relators filed a motion to dismiss the action, without prejudice, because of plaintiffs' failure to file the affidavit required by § 538.225 RSMo 1986. The respondent overruled that motion. By their petition in this proceeding, relators ask this Court to require "the respondent to dismiss said action with prejudice and to refrain from proceeding further therein and for costs expended herein."

The relators first contend the trial court should be required to dismiss the petition because it fails to state a cause of action as the doctrine of strict liability is not applicable to the sale or transfer of TMJ implants by a hospital. They obfuscate that issue by relying principally upon Racer v. Utterman, 629 S.W.2d 387 (Mo.App.1981), appeal dismissed, cert. denied, 459 U.S. 803, 103 S.Ct. 26, 74 L.Ed.2d 42 (1982), and citing other cases in which liability is based upon a health care provider's use of a defective medical device such as a hypodermic syringe or needle that breaks during use in providing medical services. Those cases do not support relators' first contention. They involve the health care provider's "use" of a defective product or device as distinguished from the "sale or transfer" of a defective product or device.

On the other hand, the respondent points out the doctrine of strict liability stated in Restatement (Second) of Torts, § 402A (1965), judicially adopted in Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo.1969), is applicable to sellers as well as manufacturers. Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. banc 1984). Respondent argues this includes a hospital that sells or transfers a medical device to a patient in the course of rendering medical services to that patient. The doctrine was considered to be applicable to a mechanical heart valve in Spuhl v. Shiley, Inc., 795 S.W.2d 573 (Mo.App.1990).

The relevant portion of the doctrine of strict liability has been stated in the following terms:

"Under the modern doctrine of strict products liability, and the Restatement (Second), any person who is 'engaged in the business of selling products for use or consumption' is subject to liability. The rule stated in the Restatement applies to 'any manufacturer of such a product, [and] to any wholesale or retail dealer or distributor ...' Restatement (Second) of Torts, supra, comment f, at 350. Parties in the chain of distribution of a product, including manufacturers, sellers, wholesale distributors or other middlemen in the manufacturing and selling process come within the umbrella of the rule. 1 Amer. Law Prod. Liab. 3d §§ 5.4, at 13, 5.5, at 15, 5.6, at 16-17 (1987); 2A L. Frumer and M. Friedman, Products Liability, § 6.18 at 6-252 et seq.; Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 (1964); Kopp v. C.C. Caldwell Optical Co., 547 S.W.2d 872 (Mo.App.1977); Means v. Sears Roebuck & Co., 550 S.W.2d 780 (Mo. banc 1977); 63 Am.Jur.2d, Products Liability, § 572 at 816 (1984) citing numerous decisions.

'Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products. In some cases, the retailer may be the only member of that enterprise reasonably available to the injured plaintiff.... 391 P.2d at 171, 172.'

The retail druggist as well as other retailers come within the rule. See 63 Am.Jur.2d, Products Liability, § 721 at 1019 (1984)." Welkener v. Kirkwood Drug Store Co., 734 S.W.2d 233, 241 (Mo.App.1987).

"The theory of strict tort liability holds 'one who sells' a defective product unreasonably dangerous to the user liable for resulting injury." Zafft at 244.

"In strict liability, '[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property.' Richardson v. Holland, 741 S.W.2d 751, 753 (Mo.App.1987), quoting Restatement section 402A(1). Under comment j to section 402A a product may be rendered unreasonably dangerous because of the absence of a warning as to its use. Racer, 629 S.W.2d at 393. A product may be found to be 'unreasonably dangerous' and actionable under Restatement section 402A when it is 'defective and dangerous when put to a use reasonably anticipated.' Hill [v. Air Shields, Inc.] 721 S.W.2d at 117 [ (Mo.App.1986) ] citing Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362, 366 (Mo.1969)." Spuhl at 577.

The doctrine is discussed in Products Liability--Body Implantations, 1 A.L.R.4th 910, 921 (1980), Strict Liability for Medical Services, 100 A.L.R.3d 1184, 1205 (1980), and Physicians; Hospitals--Strict Liability, 54 A.L.R.3d 250, 258 (1974).

Plaintiffs' petition alleges relators sold Lyn defective TMJ implants. By implication it alleges they did so in the course of their business.

"Where it may be gleaned from the petition that the cause of action attempted to be stated belongs to that class of cases of which the circuit court has general jurisdiction, that court has jurisdiction to determine the sufficiency or insufficiency of the petition, and, if it should hold a bad petition good, or a good petition bad, such holding would be error which could be corrected by appeal or other appropriate remedy, but it furnishes no ground for prohibition." State ex rel. Leake v. Harris, 334 Mo. 713, 719, 67 S.W.2d 981, 982 (banc 1934).

The trial court had jurisdiction to determine if plaintiffs' petition stated a cause of action and did not clearly abuse its discretion. I would not issue the writ on the basis the petition failed to state a cause of action under the doctrine of strict liability adopted in Keener, supra.

However, that does not mean the trial court should not have dismissed the action because of plaintiffs' failure to file the affidavit required by § 538.225. That section is a part of Chapter 538--Tort Actions Based on Improper Health Care, adopted in 1986. The parts of that chapter directly applicable to this proceeding are as follows:

"538.205. Definitions.--As used in sections 538.205 to 538.230, the following terms shall mean:

. . . . .

(4) 'Health care provider', any physician, hospital, ambulatory surgical center, long-term care facility, dentist, registered or licensed practical nurse, optometrist, podiatrist, pharmacist, chiropractor, professional physical therapist, psychologist, physician-in-training, and any other person or entity that provides health care services under the authority of a license or certificate;

(5) 'Health care services', any services that a health care provider renders to a patient in the ordinary course of the health care provider's profession or, if the health care provider is an institution, in the ordinary course of furthering the purposes...