The other day we posted about Von Downum v. Synthes, 2012 WL 5463900 (N.D. Okla. Nov. 8, 2012),primarily concerning its fraudulent joinder holding – in accord with the “overwhelmingweight of authority” in other states – that a hospital cannot be strictlyliable for claimed defects in drugs and medical devices that are used inmedical procedures within its walls. Id.at *5. (Note: the defense still lost, but on other grounds).
“Overwhelming” authority, at least when it’s infavor of a pro-defense proposition, is something that we like addressing, so aswe hinted in our previous post, we’re looking more deeply into the issue ofhospital strict liability. While we almostalways represent manufacturers, not hospitals, the notion that they could bestrictly liable as “distributors” or “intermediate sellers” of our clients’products is not a theory that we ever want to see the light of day. The answer’s simple – such liability wouldinevitably result in hospitals turning around and pointing the finger at ourclients. We don’t like seeing defendantspointing fingers at each other. Almostalways, the only beneficiary from that is the plaintiff. Not surprisingly, that’s often the precisereason why smart plaintiffs’ lawyers (don’t kid yourself, most of them are)press such theories.
The first thing we normally do in such situationsis take a look at the Restatement (Third) of Torts, Products Liability. We find the Restatement’s position in §20(“Definition of ‘One Who Sells or Otherwise Distributes’”):
[I]n a strong majority of jurisdictions, hospitals areheld not to be sellers of products they supply in conjunction with theprovision of medical care, regardless of the circumstances.
Restatement (Third) of Torts, Products Liability § 20,comment d (1998). That’s because, inmost instances courts have decided that hospitals predominantly provideservices, and thus do not qualify as “sellers” subject to strict productliability.
That brings us to the heart of the matter – whatare that “strong majority of jurisdictions”? So we go to the cases. Right nowwe’ll concern ourselves with classic “strict liability” – that is theRestatement variety – rather than implied warranty (unless there’s no otherrelevant authority), which is another way that some plaintiffs attempt to reachan essentially identically result. We dohave other things to do after all.
Here goes:Alabama
There aren’t any Alabama hospital strict liabilitycases that we’ve been able to find. Ifyou know of one, please let us know. There is Skelton v. Druid City Hospital Board, 459 So.2d 818,822-23 (Ala. 1984), which uniquely held that a hospital could be liable as a “seller”of a product under an implied warranty of fitness for a particular purpose theory. As far as we can tell, Skelton has notbeen expanded to any other theory. Perhaps there is some statute we don’t know about.Alaska
There’s nothing on point in Alaska that we could find about hospital strict liability.Arizona
0 for 3. There aren’t any Arizona hospital strict liabilitycases that we know of. The issue wasavoided, in the implied warranty context, in Whitehurst v. American Nat’lRed Cross, 402 P.2d 584 (Ariz. App. 1965), but the court did mention the“uniform” conclusion of other jurisdictions that the “sale” of a product was “merelyan incidental feature of the services rendered.” Id. at 585-86.Arkansas
The Arkansas Supreme Court avoided the issue in Adamsv. Arthur, 969 S.W.2d 598, 614 (Ark. 1998) (“we do not decide whether ahospital . . . may be strictly liable as a supplier”). The holding in Adams – that the strictliability claims were barred by the statute of limitations applicable tomalpractice claims – is suggestive that no separate cause of action for strict liabilityexists, but that’s not the ruling. There’s also mention of a holding rejecting hospital strict liability inKirkendall v. Harbor Insurance Co., 698 F. Supp. 768, 770 (W.D. Ark.1988), but it’s in a procedural history discussion. If somebody has access to the order in Kirkendall, please send it to us.California
Finally, some on point law. San Diego Hospital Ass’n. v. Superior Court,35 Cal. Rptr.2d 489, 493 (Cal. App. 1994) (“The hospital is not in the businessof selling or even leasing, bailing or licensing equipment to the physician. Itis in the business of providing medical services to its patients. . . .The fact the hospital provides equipment for the physician's use is incidentalto the overriding purpose of providing medical services”); Pierson v. SharpMemorial Hospital, Inc., 264 Cal. Rptr. 673, 676 (Cal. App. 1989) (“hospitalsa[re] providers of professional medical services rather than producers ormarketers of products”; hospital room furnishings not sued for medical purposeswere exception); Hector v. Cedars-Sinai Medical Center, 225 Cal. Rptr.595, 599 (Cal. App. 1986) (hospital “is not “engaged in the business ofdistributing [products] to the public . . . and does not play anintegral and vital part in the overall production or marketing of [products]”);Shepard v. Alexian Brothers Hospital, 109 Cal. Rptr. 132, 135 (Cal. App.1973) (“[t]he patient who enters a hospital goes there not to buy [products],but to obtain a course of treatment”; Silverhart v. Mount Zion Hospital,98 Cal. Rptr. 187, 191 (Cal. App. 1971) (“a hospital furnishing a [product] aspart of the medical services it provides is not a seller engaged in thebusiness of selling [products]”; possible exception for “activities notintegrally related to its primary function of providing medical services”).Colorado
St. Luke’s Hospital v. Schmaltz, 534 P.2d781, 784 (Colo. 1975) (“the reasoning of the majority of case law leads us tothe conclusion that public policy did not require the imposition of liabilitywithout fault on hospitals on the basis of . . . strict liability”).Connecticut
Zbras v. St. Vincent’s Medical Center, 880A.2d 999, 1002 (Conn. App. 2005) (a hospital “can bill for goods providedincidental to surgery without being in the business of selling goods. Once a particular transaction is labeled a‘service,’ as opposed to a ‘sale’ of a ‘product,’ it is outside the purview ofour product liability statute”); Zelle v. Bayer Corp., 2012 WL 1435192,at *4 (Conn. Super. Feb. 2, 2012) (“argument[s] that the hospital is a productseller would have profound negative impact upon the services provided by ahospital to members of the public”; “the hospital is not selling the productbut is offering the service”); Lambert v. Charlotte Hungerford Hospital,2006 WL 3491275, at *2 (Conn. Super. Nov. 2, 2006) (“when a hospital providesthe surgeon with hardware to perform a surgical procedure, it is performing aservice and not selling a product”); Herrick v. Middlesex Hospital, 2005WL 1760785, at *5 (Conn. Super. June 27, 2005) (a “hospital is in the businessof providing a service and that its ancillary role in providing surgeons whouse the hospital's facilities for medical operations with needed supplies,including the [product] in question, does not undermine the hospital’s primaryrole as a provider of services and not of products”); Ferguson v. EBIMedical Systems, 1995 WL 462438, at *5 (Conn. Super. Aug. 1, 1995) (thehospital “was a provider of services of which the [products] were an incidentalpart, rather than a ‘product seller’” under the Connecticut product liabilitystatute).Delaware
We didn’t find any Delaware hospital strictliability cases (probably because Delaware does not recognize strict liability),however, claims for hospital implied warranty have been rejected, for similarsales/service reasons, in Spaeder v. University of Delaware, 2007 WL3105100, at *3 (Del. Super. Oct. 17, 2007), and Flowers v. Huang, 1997WL 34724064, at *2-4 (Del. Super. Aug. 20, 1997).District of Columbia
Fisher v. Sibley Memorial Hospital, 403 A.2d1130, 1133 (D.C. 1979) (strict liability “would mean that the hospital, no matterhow careful, would be held responsible, virtually as an insurer, if the patientwere harmed”); Iacangelo v. Georgetown University, 2006 WL 4391359, at*5 (Mag. D.D.C. Oct. 11, 2006) (“the weight of uncontradicted legal authoritysuggests that courts do not apply this doctrine [strict liability] to ahospital . . . for injuries caused by medical instruments, drugs orother substances used in treatment”), adopted in pertinent part, 2007 WL915224 (D.D.C. March 26, 2007); Kozup v. Georgetown University, 663 F.Supp. 1048, 1058, (D.D.C. 1987) (granting summary judgment against hospitalstrict liability claim under Fisher), aff’d in part & vacated inpart on other grounds, 851 F.2d 437 (D.C. Cir. 1988).Florida
NME Hospitals, Inc. v. Azzariti, 573 So.2d173, 173 (Fla. App. 1991) (“[a] hospital that utilizes an alleged defectiveproduct only in the course of its primary function of providing medicalservices is not subject to an action of strict liability where the professionalservices could not have been rendered without using the product”); NorthMiami General Hospital, Inc. v. Goldberg, 520 So.2d 650, 652 (Fla. App.1988) (“[h]ospitals are not ordinarily engaged in the business of sellingproducts or equipment used in the course of their primary function of providingmedical services, and strict liability will not be imposed”).Georgia
McCombs v. Southern Regional Medical Center,Inc., 504 S.E.2d 747, 749 (Ga. App. 1998) (“[plaintiff] did not go to [thehospital] to purchase a [product] but to have her spinal problem surgicallyrepaired”).Hawaii
We found no hospital strict liability cases, oranything analogous, in Hawaii.Idaho
The same is true of Idaho.Illlinois
Illinois used to allow this kind of thing (at least under the guise of warranty). Not any longer. Brandt v. Boston Scientific Corp., 792N.E.2d 296, 303 (Ill. 2003) (“services, the medical treatment, were the primarypurpose of the transaction between [plaintiff] and the [hospital], and thepurchase of the [product] was incidental to the treatment”) (overruling priorcontrary precedent); Greenberg v. Michael Reese Hospital, 415 N.E.2d390, 395 (Ill. 1980) (“we conclude that public policy dictates against theimposition of strict liability in tort for injuries resulting from the [use ofproducts] by a hospital”).Indiana
St. Mary Medical Center, Inc. v. Casko, 639N.E.2d 312, 315 (Ind. App. 1994) (“the essence of [the hospital’s] conduct inthis case is not that of a seller of [products] but rather that of a providerof medical services. As such, it cannotbe subject to strict liability for a defective product provided to a patientduring the course of his or her treatment”).Iowa
We found no hospital strict liability cases, oranything analogous, in Iowa.Kansas
Ditto for Kansas.Kentucky
Ditto for Kentucky.Louisiana
See La. Rev. Stat. §9:2797 (overruling DeBattistav. Argonaut-Southwest Insurance Co., 403 So.2d 26 (La. 1981), which allowedhospital strict liability), as discussed in Christiana v. Southern BaptistHospital, 867 So.2d 809, 817 (La. App. 2004). Note: all of these cases, pro and con, were blood transfusion cases, as wasthe statute. See also Huffakerv. ABC Insurance Co., 659 So.2d 544, 545-46 (La. App. 1995) (strictliability claims against hospital involving medical device fell under MedicalMalpractice Act); Fontenot v. Johnson & Johnson, 2010 WL 2541187, at*5-6 (W.D. La. April 30, 2010) (same). Cf.Sewell v. Doctors Hospital, 600 So.2d 577, 580 (La. 1992) (strictliability claim regarding defective hospital bed not used for medical treatment was viable).Maine
We didn’t find any hospital strict liability casesin Maine, but the concept that the sales/service distinction “exempt[s] hospitals fromstrict liability for obtaining medical devices and products that are used byphysicians in medical procedures” was cited favorably in Herzog v.Arthrocare Corp., 2003 WL 1785795, at *13 (D. Me. March 21, 2003), a caseinvolving a distributor of medical devices. Also, in Jordan v. Cap Quality Care, Inc., 2009 WL 1106423 (Me.Super. March 16, 2009), the court applied the same reasoning to preclude strictliability claims against physicians).Maryland
Roberts v. Suburban Hospital, 532 A.2d 1081,1088-89 (Md. App. 1987) (hospital not strictly liable; “[i]t would beartificial at best, and probably inaccurate, to conclude as a matter of lawthat the product predominates over the service”).Massachusetts
There’s practically no law in Massachusetts onhospital strict liability, which is somewhat surprising. The only case we’ve found, Phillips v.Medtronic, Inc., 754 F. Supp.2d 211 (D. Mass. 2010), was decided under theextremely loose any “arguable reasonable basis” standard for fraudulentjoinder. It held that “the fact thatthere is no definitive Massachusetts case law on this question, it is plausiblethat the Massachusetts Supreme Judicial Court (“SJC”) would follow the fewstate courts which have held that a hospital can be deemed a seller ordistributor of medical devices for the purposes of a product liability claim.” Id. at 217. Phillips was unable to identify anycase anywhere that had allowed a strict liability (as opposed to warranty)claim against a hospital. We also notethat in Heinrich v. Sweet, 49 F. Supp.2d 27, 41-42 (D. Mass. 1999), thecourt, applying Massachusetts law, rejected another form of strict liability(abnormally dangerous activity) against a hospital in a suit over medicaltreatment.Michigan
Ayyash v. Henry Ford Health Systems, 533N.W.2d 353, 355 (Mich. App. 1995) (“[b]ecause the primary function of . . .hospitals is to provide care, not to manufacture or distribute products, thoseeconomic theories that underlie the imposition of strict liability upon makersand sellers of products do not justify the extension of strict liability tothose who provide medical services”); Leith v. Henry Ford Hospital, 2000WL 33420641, at *5 (Mich. App. May 16, 2000) (“[t]he primary function of . . .hospitals is to provide care, not to manufacture or distribute products”) (unpublished).Minnesota
Femrite v. Abbott Northwestern Hospital, 568N.W.2d 535, 543 (Minn. App. 1997) (“Minnesota courts have never recognized thedoctrine of [hospital] strict liability for administrative services, and. . . we decline to recognize this cause of action here”).Mississippi
Roell v. Stryker Corp., 2007 WL 2783357, at*3 (S.D. Miss. Sept. 21, 2007) (“the plain language of the [Mississippi productliability] statute and case authority” establishes that a hospital “is not aseller’”).Missouri
Missouri is another state that used to allow hospital strict liability, but thought better of it. Budding v. SSM Healthcare System, 19 S.W.3d678, 682 (Mo. 2000) (malpractice statute “eliminate[d] liability of health careproviders for strict products liability”; overruling prior cases that had allowedhospital strict liability).Montana
There’s no case law directly addressing hospitalstrict liability in Montana, however, in Hutchins v. Blood Services, 506P.2d 449 (Mont. 1973) (blood transfusion case), the court appeared to rejectstrict liability, without ever mentioning it, stating that if a hospital “withoutthe slightest evidence of deviation from approved medical practice” could beforced “ipso facto to pay damages any time a person whose life they savesuffers an untoward result,” the “enterprise would be hazardous andself-defeating.” Id. at 453.Nebraska
We didn’t find anything about hospital strictliability in Nebraska.Nevada
There’s no hospital strict liability precedent inNevada that we could find. However, in RenownHealth v. Vanderford, 235 P.3d 614 (Nev. 2010), the court rejected another“strict liability concept” – the nondelegable duty – when sought to be appliedto a hospital. Id. at 616.New Hampshire
Royer v. Catholic Medical Center, 741 A.2d74, 78 (N.H. 1999) (“medical services are distinguished by factors which makethem significantly different in kind from the retail marketing enterprise”; “ahealth care provider in the course of rendering health care services supplies a[product], the health care provider is not engaged in the business of selling [products]for purposes of strict products liability”); see Moss v.Dartmouth-Hitchcock Medical Center, 2005 WL 3305010, at *2 (D.N.H. May 12,2005) (dismissing hospital strict liability claim under Royer).New Jersey
Brody v. Overlook Hospital, 332 A.2d 596,597 (N.J. 1975) (hospital is “under an obligation to use due care . . .not accountable under the theory of strict liability in tort”; strict liabilityimproper for “sound policy reasons”) (per curiam); Snyder v Mekhjian,582 A.2d 307, 313 (N.J. Super. App. Div. 1990) (“for purposes of productliability law, a hospital cannot be held strictly liable for a latentlydefective product supplied to it by another for its use in rendering treatment”),aff’d on opinion below, 593 A.2d 318 (N.J. 1991); Johnson v.Mountainside Hospital, 571 A.2d 318, 321 (N.J. Super. App. Div. 1990) (“[o]urcourts have refused to impose strict liability on health care providers”); Baptistav. Saint Barnabas Medical Center, 262 A.2d 902, 906-07 (N.J. Super. App.Div. 1969) (“we find no justification for extending the doctrine of strictliability” to hospitals; “[t]o adopt such a rule would be to make a hospital aninsurer of what are in essence medical services and opinions”), aff’d onopinion below, 270 A.2d 409 (N.J 1970).New Mexico
Hines v. St. Joseph's Hospital, 527 P.2d1075, 1077 (N.M. 1974) (“under no theory would [a hospital] be independentlyliable under strict liability”); Parker v. St. Vincent Hospital, 919P.2d 1104, 1110-11 (N.M. App. 1996) (“Having analyzed the policies favoringstrict products liability in the context of potential hospital liability fordefectively designed medical products selected by treating physicians, weconclude that such liability is inappropriate. Although we have not followed otherjurisdictions which have held that hospitals are not distributors of medicalproducts, we find support for our conclusion in the results reached by themajority of courts that have considered strict-products-liability claimsagainst hospitals.”).New York
Perlmutter v. Beth David Hospital, 123N.E.2d 792, 796 (N.Y. 1954) (“when one enters a hospital as a patient; he goesthere, not to buy [products], but to obtain a course of treatment in the hopeof being cured of what ails him”) (yeah, we know it's not strict liability exactly, but it's the grand daddy of them all); Goldfarb v. Teitelbaum, 540 N.Y.S.2d263, 264 (N.Y. App. Div. 1989) (use of a product in plaintiff’s treatment “didnot constitute a ‘sale’ of the device as required for a cause of actionsounding in products liability”; use of the product was “incidental to medicaltreatment”); Probst v. Albert Einstein Medical Center, 440 N.Y.S.2d 2, 3(N.Y. App. Div. 1981) (strict liability “without merit” where use of theproduct “was incidental to the medical services provided by the [hospital]”); Iannucciv. Yonkers General Hospital, 399 N.Y.S.2d 39, 39 (N.Y. App. Div. 1977)(“public policy . . . is contrary to the imposition of strictproducts liability” against a hospital); Jennings v. Roosevelt Hospital,372 N.Y.S.2d 277, 280-81 (N.Y. Sup. 1975) (following Perlmutter); Simonev. Long Island Jewish Hillside Medical Center, 364 N.Y.S.2d 714, 717 (N.Y.Sup. 1975) (“in the normal commercial transaction contemplated in the strictliability cases the essence of the transaction relates solely to the articlesold, the seller is in the business of supplying the product to the consumerand it is that, and that alone for which he is paid”; these “distinctionscompel the conclusion that a hospital is not engaged in the business ofdistributing [products] to the public”); Tucker v. Kaleida Health, 2011WL 1260117, at *3 (W.D.N.Y. March 31, 2011) (“the nature of the relationshipbetween hospital and patient is that of a service, rather than a sale”; “apatient's receipt of tangible materials is merely an incidental adjunct to theservices performed, and the service provider is not a seller for productsliability purposes”); Pantano v. Telectronics Pacing Systems, Inc., 1996WL 107099, at *1 (W.D.N.Y. Feb. 15, 1996) (“plaintiffs cannot state a strictproducts liability claim against the Hospital because, under New York law, ahospital is not considered a seller, designer or manufacturer of the medicalsupplies it provides incidental to its provision of medical services”); Weissmanv. Dow Corning Corp., 892 F. Supp. 510, 518 (S.D.N.Y. 1995) (the law “does nothold that a medical care provider may be sued for negligence based on a theorythat it is a seller of a defective product, but because of negligence in theperformance of a hospital administrative function”); Samuels v. Health &Hospital Corp., 432 F. Supp. 1283, 1284-85 (S.D.N.Y. 1977) (“the doctrineof strict liability in tort is inapplicable to the service by the hospital ofproviding [a product]”).North Carolina
Although it could have just held that NorthCarolina has never recognized strict liability at all (indeed, strict liabilityis statutorily prohibited), an MDL court nonetheless decided the hospital strictliability issue on the merits in In re TMJ Implants, 872 F. Supp. 1019,1036 (D. Minn. 1995), (“follow[ing] thegeneral proposition that health care providers should not be held liable forclaims based on products liability”), aff’d, 97 F.3d 1050 (8th Cir.1996) (applying North Carolina law).North Dakota
Nothing on point in North Dakota.Ohio
Surprisingly, given the size of the state, there’snot much law in Ohio on hospital strict liability. A hospital was determined not strictly liableas a matter of law in Morse v. Riverside Hospital, 339 N.E.2d 846,850-51 (Ohio App. 1974), on the basis of the sales/service distinction, but thecase was an interpretation of a blood shield statute where the legislature haddefined the transaction as a service. InSaylor v. Providence Hospital, 680 N.E.2d 193, 196 (Ohio App. 1996), thecourt allowed a “products liability inadequate-warning claim” to surviveagainst a hospital, although it did not articulate any reason, other than itbeing sufficiently pleaded, why the claim could state a cause of action.Oklahoma
Hollander v. Sandoz Pharmaceuticals Corp.,289 F.3d 1193, 1217 n.22 (10th Cir. 2002) (“anoverwhelming majority of jurisdictions have refused to apply strict liabilityprinciples to claims against hospitals and physicians involving thedistribution of allegedly dangerous drugs or medical devices”); Von Downumv. Synthes, 2012 WL 5463900, at *3 (N.D. Okla. Nov. 8, 2012) (“Oklahomacourts have consistently declined to hold physicians and hospitals to astandard of strict liability”).Oregon
No Oregon case has ever allowed hospital strictliability – but no Oregon court has explicitly rejected it either. Thus, in Snyder v. Davol, Inc., 2008WL 113902 (D. Or. Jan. 7, 2008), under the extremely broad fraudulent joinderstandard, speculated that Oregon might run contrary to “the clear weight ofauthority from other jurisdictions” and allow such a claim. Id. at*7.Pennsylvania
Cafazzo v. Central Medical Health Service, Inc.,668 A.2d 521, 524 (Pa. 1995) (“provision of medical services is regarded asqualitatively different from the sale of products, and, rather than being anexception to [strict liability], is unaffected by it”); Podrat v.Codman-Shurtleff, Inc., 558 A.2d 895, 898 (Pa. Super. 1989) (“the hospitalcould not be liable under a theory of strict liability because the hospital wasnot in the business of selling this instrument, its use was only incidental tothe hospital’s primary function of providing medical services and the medicalservices could not have been rendered without the use of this product”); Ebyv. Milton S. Hershey Medical Center, 31 Pa. D. & C.4th 121, 125-27 (Pa.C.P. 1996) (following Cafazzo); LaValla v. Parker, 1991 WL 17757,at *3 (E.D. Pa. Feb. 12, 1991) (“a hospital is not liable under section 402A ofthe Restatement (Second) of Torts as a seller of a product”); Flynn v.Langfitt, 710 F. Supp. 150, 152 (E.D. Pa. 1989) (dismissing hospital strictliability claim); contra Karibjanian v. Thomas Jefferson UniversityHospital, 717 F. Supp. 1081, 1085 (E.D. Pa. 1989) (pre-Cafazzo).Puerto Rico
There are no cases that we could find directlyaddressing hospital strict liability in Puerto Rico, however, there is thisdictum in Rolon-Alvarado v. Municipality of San Juan, 1 F.3d 74(1st Cir. 1993), where such a claim had been abandoned by the plaintiff: “it is hornbook law that a health-careprovider cannot be held strictly liable for a latent defect in a medical devicemanufactured by a third party.” Id. at 79 n.5Rhode Island
There’s no law on hospital strict liability or anyanalogous claim in Rhode Island.South Carolina
In re Breast Implant Product Liability Litigation,503 S.E.2d 445, 451 (S.C. 1998) (“health care providers may not be heldstrictly liable . . . for products used in the course of providingmedical treatment”); Pleasant v. Dow Corning Corp., 1993 WL 1156110, at*2 (D.S.C. Jan. 7, 1993) (“because hospitals are primarily engaged in thebusiness of providing medical services, rather than selling products, strictliability should not be imposed if the medical services involve the use of aproduct”).South Dakota
There’s no law directly concerning hospital strictliability in South Dakota, however, in Kendall v. Bausch & Lomb, Inc.,2009 WL 1740002, at *6-7 (D.S.D. June 17, 2009), the court cited to other states'barring of such claims in addressing an issue involving strict liability andcommercial lessors.Tennessee
Oddly, the issue of hospital strict liability inTennessee does not seem to have arisen outside of the context of blood/tissueproducts, as to which liability is precluded by statute. Sawyer v. Methodist Hospital, 522 F.2d1102, 1105 (6th Cir. 1975); McDaniel v. Baptist Memorial Hospital, 469F.2d 230, 232-33 (6th Cir. 1992); both construing Tenn. Code Ann.§47-2-316(c)(5). The statute has beenextended to strict liability, even though on its face it only relates towarranty claims.Texas
Cobb v. Dallas Fort Worth Medical Center-GrandPrairie, 48 S.W.3d 820, 826 (Tex. App. 2001) (“hospitals are not engaged inthe business of selling the products or equipment used in the course ofproviding medical services”); Easterly v. Hospital of Texas, Inc., 772S.W.2d 211, 213 (Tex. App. 1989) (“[t]he hospital is not in the business ofselling [prescription medical products] separate from the medical relationshipbetween doctor and patient involving the furnishing of medical services”); Nevauexv. Park Place Hospital, Inc., 656 S.W.2d 923, 926 (Tex. Civ. App. 1983) (“[s]trictliability does not apply to defective services”), writ ref’d n.r.e.; Shiversv. Good Shepherd Hospital, Inc., 427 S.W.2d 104, 107 (Tex. Civ. App. 1968)(rejecting §402A strict liability against hospital for administration ofprescription drug), writ ref’d n.r.e.; Vergott v. DeseretPharmaceutical Co., 463 F.2d 12, 16 n.5 (5th Cir. 1972) (“a hospital is nota seller engaged in the business of selling the product”) (applying Texas law);contra Thomas v. St. Joseph Hospital, 618 S.W.2d 791, 796-98(Tex. Civ. App. 1981) (allowing strict liability for an inflammable hospitalgown, as opposed to a prescription medical product), writ ref’d n.r.e.Utah
There is no law in Utah on hospital strict liability. However, the rationale of cases rejectingsuch liability was cited favorably in Utah Local Government Trust v. WheelerMachinery Co., 199 P.3d 949, 954-55 (Utah 2008), a non-hospital caseconcerning the scope of the state’s product liability statute. A fairly ancient case, Dibblee v. Dr. W.H.Groves Latter-Day Saints Hospital, 364 P.2d 1085, 1087-88 (Utah 1961),contains a rather passionate denunciation of what sounds like strict liability(denominated “absolute insurability”) of a hospital for products used by itspatients, but it was in large part based on the concept of hospitals of charitableinstitutions, and thus should be viewed with some caution.Vermont
We didn’t find any hospital strict liability casesin Vermont. In a relatively old case afederal district court went out on a limb (something it should not have doneunder Erie principles) and predicted that a hospital might be liableunder a implied warranty theory. Mauranv. Mary Fletcher Hospital, 318 F. Supp. 297, 300 (D. Vt. 1970), but no casehas followed up on this prediction in over forty years.Virginia
Virginia doesn’t recognize strict liability at all,so there’s not much law. However, in theimplied warranty context, the court in Coffman v. Arthrex, Inc., 2005 WL4827394, at *2 (Va. Cir. March 31, 2005), relied on the reasoning of hospitalstrict liability cases to reject an implied warranty cause of action. Conversely, another anything goes (“slightpossibility of a right to relief”) fraudulent joinder decision speculated thatVirginia might allow an implied warranty claim against a hospital in Sandersv. Medtronic, Inc., 2006 WL 1788975, at *11 (E.D. Va. June 26, 2006) (“this does not mean that the courtbelieves that the plaintiff would necessarily prevail on her claim”).Washington
Howell v. Spokane & Inland Empire Blood Bank,785 P.2d 815, 821 (Wash. 1990) (“[T]he contractual relationship between ahospital and a patient is not one of sale but is one of service; that duringtreatment in the hospital [products], for which additional charges are made,may be transferred from the hospital to the patient; and yet the transfer is anincidental feature of the transaction and not a sale”); McKenna v. HarrisonMemorial Hospital, 960 P.2d 486, 489 (Wash. App. 1998) (“[plaintiff] entered[the hospital], not to purchase [a product], but to receive the surgery towhich [it] was incidental. And inproviding ancillary surgical services, [the hospital] was not a seller of thedevice, but rather a provider of professional services. [It] is, therefore, exempt from liability forthe [product] under the Washington Product Liability Act”);’ see Doylev. Planned Parenthood of Seattle-King County, Inc., 639 P.2d 240, 243(Wash. App. 1982) (rejecting strict liability claim asserted against medicalclinic).West Virginia
Blankenship v. Ethicon, 656 S.E.2d 451,458-59 (W. Va. 2007) (hospital strict liability claim barred by medicalmalpractice statute); Foster v. Memorial Hospital Ass’n, 219 S.E.2d 916,921 n.5 (W. Va. 1975) (“strict liability in tort would be equally inapplicable”to a hospital, as “courts have refused to extend absolute tort liability topersons rendering . . . services”); see Foster v. MemorialHospital Ass’n of Charleston, 219 S.E.2d 916, 919-20 (W. Va. 1975)(rejecting implied warranty claim against hospital in blood case undersale/service distinction; following New York Perlmutter case).Wisconsin
Hoven v. Kelble, 256 N.W.2d 379, 392 (Wis.1977) (“moving from the malpractice concept even with its many problems to astrict liability system at the present time appears to be a dubious move”); Satoriusv. Proassurance Wisconsin Insurance Co., ___ N.W.2d ___, 2012 WL 5319213¶¶19-21 (Wis. App. Oct. 30, 2012) (rejecting theory that court interpreted ashospital strict liability under Hoven); Hoff v. Zimmer, 746 F. Supp.872, 876 (W.D. Wis. 1990) (“[w]hether the [claim] against [the hospital] allegesdamages arising from a defective product or damages arising from defectiveservices, the allegations do not make out a viable claim of strict liability”);contra Johnson v. Sears, Roebuck & Co., 355 F. Supp. 1065,1067 (E.D. Wis. 1973) (pre-Hoven).Wyoming
Nope. Nothingon hospital strict liability from Wyoming.
* * * *
In sum, the precedent rejecting hospital strictliability is, indeed, “overwhelming.” Asto strict liability, there’s practically no precedent at all. A few old implied warranty cases are outthere, but the only recent precedent that doesn’t throw out these claims aresome fraudulent joinder decisions where courts have required parties removingcases to federal court to prove a negative where the plaintiff has raised novelclaims with zero support that no other court has even considered.
Hiç yorum yok:
Yorum Gönder