Warden v. Southwest Louisiana Hospital Ass'n
| Decision Date | 11 September 1974 |
| Docket Number | No. 4648,4648 |
| Citation | 300 So.2d 590 |
| Parties | Bosia WARDEN and his wife Evie Lois Warden, Plaintiffs-Appellants, v. SOUTHWEST LOUISIANA HOSPITAL ASSOCIATION et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Peter A. Ciambotti, Lake Charles, for plaintiffs-appellants.
Douglas L. Irish, Lewis & Roca, Phoenix, Ariz., Davidson, Meaux, Onebane & Donohoe by Richard C. Meaux, Lafayette, Brame, Bergstedt & Brame by Frank M. Brame, Plauche , Smith & Hebert by Andrew L. Plauche , Jr., II, Lake Charles, for defendants-appellees.
Before FRUGE , CULPEPPER and WATSON, JJ.
Plaintiff, Evie Lois Warden, contracted a serious hepatitis infection; she and her husband, Bosia Warden, filed this suit to recover damages from defendants, alleging that her hepatitis was serum hepatitis resulting from blood transfusions she received either between October 31 and November 16, 1970, at St. Patrick's Hospital or between November 20th and November 29, 1970, at Memorial Hospital, both in Lake Charles, Louisiana . Made defendants were Southwest Louisiana Hospital Association, d/b/a Lake Charles Memorial Hospital; its insurer, Fidelity and Casualty Company of New York; Sisters of Charity of the Incarnate Word of the Diocese of Galveston, d/b/a St. Patrick's Hospital; their insurer, Argonaut Southwest Insurance Company; Blood Services of Texas; and Blood Services.
Plaintiffs' suit pleads three alternative legal theories: (1) implied warranty; (2) strict liability; and (3) negligence.
Defendants all filed motions for summary judgment, and there was a hearing on these motions on September 13, 1973. The trial court granted defendants' motions for summary judgment. Plaintiffs have appealed.
The facts concerning the hospitalization of Mrs. Warden and her blood transfusions with their alleged consequences are as follows:
Plaintiffs' petition alleges that plaintiff, Evie Lois Warden, was admitted to St. Patrick's Hospital on October 31, 1970; that she received blood transfusions on November 4, 1970, and on November 11, 1970, the blood being purchased by plaintiffs from St. Patrick's Hospital. She was released from St. Patrick's on November 16, 1970; commenced hemorrhaging; and was admitted to Lake Charles Memorial Hospital on or about November 20, 1970. She remained there until November 29, 1970, and, during her hospitalization, she received blood transfusions. On January 23, 1971, she was taken to the emergency room of St. Patrick's Hospital and, after a critical period, recovered. She returned home on February 6, 1971. Her condition at the time of this third hospitalization was diagnosed provisionally by her physician, Dr. Lacour, as 'post-transfusion hepatitis' (TR. 8.) Mrs. Warden is alleged to have sustained permanent damage to her liver, requiring medical attention and medication for the rest of her life. She asked damages of $150,000.00. Her husband, as head and master of the community, asked damages for her medical bills, hospital expenses, drug expenses, loss of services and mental anguish and distress for a total of $75,000. Plaintiffs filed suit in forma pauperis.
The Southwest Louisiana Hospital Association, d/b/a Lake Charles Memorial Hospital, and its insurer, Fidelity and Casualty Company of New York, filed a peremptory exception of no cause and no right of action as to Bosia Warden's claim for mental anguish and loss of services. This exception was heard with the motions for summary judgment but was not decided due to the trial court's granting of the motions for summary judgment.
In answer to interrogatories propounded by defendants, Blood Services and Blood Services of Texas, to plaintiffs in regard to Mrs . Warden's course of treatment, plaintiffs answered as follows:
(TR. 99)
Filed with the motion for summary judgment on behalf of Blood Services and Blood Services of Texas was the affidavit of John B. Alsever, M.D., who stated that he was vice-president for medical affairs of Blood Services; that infectious hepatitis and serum hepatitis are clinically indistinguishable; that the incubation period for serum hepatitis may be as long as 182 days; and that, at the time of this patient's transfusions, medical knowledge was such that the blood was not capable of being made entirely safe for transfusion.
Only the procedures used by Blood Services are stated to be from affiant's 'personal knowledge' (TR. 127). That portion of the affidavit not based on personal knowledge by the doctor should not have been considered by the trial court in deciding the motions for summary judgment. LSA-C.C.P. art. 967;1 Hidalgo v. General Fire & Casualty Company, 254 So.2d 493 (La.App. 3 Cir. 1971).
Attached to this doctor's deposition were copies of the bag label and official package circular used by Blood Services, the bag label reading as follows:
(Exhibit A--1; TR. 128)
Attached to this deposition as Exhibit B are the texts of laws relating to blood transfusions, warranty and strict liability from various jurisdictions.
Blood Services also introduced the affidavit of W. Quinn Jordan (Exhibit C; TR. 146), president of Blood Services; this exhibit goes into the financing and operation of Blood Services. Another affidavit by Mr. Jordan, Exhibit D, concerns the charter and articles of incorporation of Blood Services.
Exhibit E is an affidavit by Dr. Alsever which states that all employees of Blood Services of Texas are selected and retained with due care. The articles of incorporation of Blood Services of Texas, its by-laws and certificate of incorporation are also in evidence. Both Blood Services and Blood Services of Texas are non-profit charitable corporations. The defense of charitable immunity has been abolished in Louisiana. Consideration of this point is unnecessary. The trial court stated correctly that charitable immunity was not to be considered. Garlington v. Kingsley, 289 So.2d 88 (La., 1974); Jackson v. Doe, 296 So.2d 323 (La., 1974); Connor v. Methodist Hospital, 297 So.2d 660 (La., 1974).
Mrs. Warden stated in her deposition that Dr. McCann, now deceased, told her that she had serum hepatitis during her third hospitalization. Mrs. Warden also stated that no other member of her family had hepatitis and that she had been told by Dr. Lacour that the type of hepatitis she had was not contagious and could only be transmitted through blood contact. Mrs . Warden also testified that Dr. Lacour stated that he agreed with Dr. McCann's diagnosis of serum hepatitis.
The deposition of Dr. Fritz Anthony Lacour, Sr. (Tr. 426) was introduced in evidence. He said he had been engaged in the general practice of medicine in Lake Charles for about twenty years and had treated Mrs. Warden for a period of between three and five years. He admitted her to Lake Charles Memorial Hospital on November 1, 1970, and she had surgery by Dr. Tucker on November 3, 1970. He next saw Mrs. Warden on December 11, 1970. He stated that she was hospitalized on January 24, 1971, by Dr. McCann and he saw her when he returned to the city. This doctor stated that he diagnosed Mrs. Warden as having hepatitis of unknown origin.
It was pointed out that his statement that his provisional as well as final diagnosis was 'hepatitis, cause unknown. . . .' (TR. 436) was contradicted by the record of St. Patrick's Hospital which stated 'Provisional diagnosis, post-transfusion hepatitis' (TR. 461) . Dr. Lacour then stated that he could not get pathologists to confirm his diagnosis of post-transfusion hepatitis. He also stated in answer to the following question
'Question: I want to know whether in your medical opinion you can state whether or not it is more probable than not that she contracted this hepatitis from the blood that she received?
(TR. 470)
The deposition of Dr. Andrew Ranier, a specialist in the field of pathology, was taken on behalf of defendants. He stated that he was director of laboratories for St. Patrick's Hospital and that St. Patrick's maintains a blood bank in the hospital, receiving most of its blood from Blood Services. Dr. Ranier said that the viruses causing serum hepatitis and epidemic hepatitis are indistinguishable in the laboratory. However, he stated that some doctors have the opinion that on clinical information they can distinguish the two types of hepatitis. (TR. 513--515) It is known that immunity to one does not give immunity to the other. He stated that he had never seen Mrs. Warden personally but that his office had done tests for her at her physician's request.
Dr. Avery L. Cook, a specialist in pathology, testified by deposition that he is director...
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