Williamson v. Memorial Hospital of Bay County, U--170

• Decision Date: 30 January 1975
• Docket Number: No. U--170,U--170
• Citation: 307 So.2d 199
• Parties: 16 UCC Rep.Serv. 635 Faye WILLIAMSON, Appellant, v. MEMORIAL HOSPITAL OF BAY COUNTY et al., Appellees.
• Court: Florida District Court of Appeals

Page 199

307 So.2d 199

16 UCC Rep.Serv. 635

Faye WILLIAMSON, Appellant, v. MEMORIAL HOSPITAL OF BAY COUNTY et al., Appellees.

No. U--170.

District Court of Appeal of Florida, First District.

Jan. 30, 1975.

Robert B. Staats, Panama City, for plaintiff.

Lynn C. Higby, of Isler, Higby & Brown, Rowlett W. Bryant, of Sale, Bryant & Thompson, Panama City, for defendants.

SPECTOR, Judge.

We have this matter before us on a question certified by the trial court pursuant to Rule 4.6, Florida Appellate Rules. The question of law certified upon the petition of appellant, plaintiff below, reads as follows:

'MAY A PLAINTIFF MAINTAIN AN ACTION, ON THE THEORY OF IMPLIED WARRANTY, AGAINST THE HOSPITAL AND PHYSICIANS, WHO SOLD AND ADMINISTERED BLOOD TO HER, WHICH BLOOD THE PLAINTIFF ALLEGES CAUSED THE PLAINTIFF TO CONTRACT, OR BE INFECTED WITH SERUM HEPATITIS?'

The appellant contends that the answer should be in the affirmative, while appellees opt for the negative.

The liability of a supplier of blood for medical transfusion has been considered by Florida courts in a number of reported decisions. In Russell v. Community Blood Bank, Inc., 185 So.2d 749 (Fla.App.1966), the court held that a blood bank which supplies blood for medical purposes is liabile for breach of implied warranty of fitness and merchantability. On conflict certiorari, the Supreme Court at 196 So.2d 115 sustained that holding but reversed on other grounds relating to the premature determination of other questions of law. While the Supreme Court held that a blood bank was liable under the doctrine of implied warranty, it did not disturb the court of appeals holding that a hospital is not subject to liability on that ground. The non-liability of a hospital on breach of implied warranty was upheld by the Third District Court of Appeal in Hoder v. Sayet, 196 So.2d 205 (Fla.App.1967), wherein a plaintiff sought damages allegedly resulting from a blood transfusion in an action against a hospital and a commercial blood bank. Thus, Russell and Hoder, supra, both stood for the proposition that while a blood bank could be held for breach of implied warranty, a hospital could not be so held. In Mercy Hospital, Inc. d/b/a Mercy Hospital Blood Bank v. Benitez, 257 So.2d 51 (Fla.App.1972), the court analogized a blood bank established by a hospital with a commercial blood bank and held that it was liable under the implied warranty doctrine. Holding that the transaction was a sale and not a service, the court in Benitez observed that the transaction giving rise to the claim occurred prior to the enactment of Chapter 69--157, now Section 672.316(5), Florida Statutes.

Said statutory provision reads as follows:

'The 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 for any purpose whatsoever is declared to be the rendering of a service by any person participating therein and does not constitute a sale, whether or not any consideration is given therefor, and the implied warranties of merchantability and fitness for a particular purpose shall not be applicable as to a defect that cannot be detected or removed by reasonable use of scientific procedures or techniques.'

The blood transfusion which gave rise to this action occurred after the enactment of the cited statute, so its provisions apply. By operation of the statute, the provision of blood is made a service and not a sale. The statute further states that the implied warranty of merchantability and fitness is not applicable as to a reasonably unremovable or undetectable defect. The implication of the statute, of course, is that if the defect is...