Walker, John Frost

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Blood Banks, Bad Blood, and Implied Warranty

University of Miami School of Law

University of Miami Law Review Volume 21 Number 2 Article 7 1-1-1966 Blood Banks, Bad Blood, and Implied Warranty John Frost Walker Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation John Frost Walker, Blood Banks, Bad Blood, and Implied Warranty, 21 U. Miami L. Rev. 479 (1966) Available at: https://repository.law.miami.edu/umlr/vol21/iss2/7 This Case Noted is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. CASES NOTEDBLOOD BANKS, BAD BLOOD, ANDIMPLIED WARRANTYThe plaintiff contracted serum hepatitis as the result of a bloodtransfusion. He sued the blood bank for breach of implied warranty.The trial court dismissed the complaint, and plaintiff appealed. TheDistrict Court of Appeal held, reversed and remanded: a plaintiff canstate a cause of action against a blood bank for breach of implied war-ranty, but can only recover for injuries if they were caused by failureto detect or remove a deleterious substance capable of detection or re-moval. Russell v. Community Blood Bank, Inc., 185 So.2d 749 (Fla. 2dDist. 1966).Jurisdictions have generally refused to apply the laws of impliedwarranty to the sale of blood on the theory that the administering ofthe blood was but an incidental feature of the hospital's service.' Otherjurisdictions have enacted statutes to this effect.2 The precedent for thisaproach is Perlmutter v. Beth David Hosp.8 The plaintiff in that casesued the hospital for injuries resulting from a transfusion of blood whichcaused her to contract serum hepatitis. This was the first such actionbased on the theory of implied warranty of fitness.' Previous actions forsimilar injuries were usually supported by negligence allegations.5 InPerlmutter, however, the New York court held that the. supplying ofblood was a "service" and not a "sale," and therefore the laws of war-ranty would not apply.01. Sloneker v. St. Joseph's Hosp., 233 F. Supp. 105 (D. Colo. 1964); Whitehurstv. American Nat. Red Cross, 1 Ariz. App. 326, 402 P.2d 584 (1965); Balkowitsch v.Minneapolis War Memorial Blood Bank, Inc., 270 Minn. 151, 132 N.W.2d 805 (1965); Hidyv. State, 3 N.Y.2d 727, 143 N.E.2d 528, 163 N.Y.S.2d 985 (1957); Gile v. Kennewick Pub.Hosp. Dist., 48 Wash.2d 774, 296 P.2d 662 (1956); Koenig v. Milwaukee Blood Center, Inc.,23 Wis.2d 324, 127 N.W.2d 50 (1964); Diblee v. Dr. W. H. Groves Latter-Day SaintsHosp., 12 Utah 2d 241, 364 P.2d 1085 (1961).2. See ARiz. REv. STAT. § 36-1151 (1956) (furnishing of blood is a service and not asale), and CAL. HEALT & SAFETY CODE § 1606:The procurement, processing, distribution or use of whole blood, plasma, bloodproducts, and blood derivatives ... shall be construed to be ... the rendition of aservice ... and is declared not to be, a sale....3. 308 N.Y. 100, 123 N.E.2d 792 (1954).4. See generally Note, Liability for Blood Transfusion Injuries, 42 MINx. L. REV. 640(1958).5. Parker v. State, 280 App. Div. 157, 112 N.Y.S.2d 695 (3d Dep't. 1952) (action fornegligence on the ground that physician should have been warned of the danger of hepatitisvirus). See also Merck & Co. v. Kidd, 242 F.2d 592 (6th Cir. 1957), cert. denied, 78 Sup. Ct.15 (1957), where plaintiff argued that hepatitis virus in pooled blood was a violation ofTennessee Food, Drug, and Cosmetics Act and hence negligence per se.6. Perlmutter v. Beth David Hosp., 308 N.Y. 100, 106, 123 N.E.2d 792, 794 (1954).The conclusion is evident that the furnishing of blood was only an incidental and479UNIVERSITY OF MIAMI LAW REVIEWPerlmutter was a 4-3 decision with a well reasoned dissent. It wasextensively criticized by all commentators,7 but followed by the courts.'Criticism of the decision centered on the "sale-service" dichotomy:Regardless of the conclusion reached on the liability issue, thecourt's opinion does a disservice by framing the issue in termsof the "service" doctrine .... 9Another commentator stated:The effect of the instant case is to limit patients to their diffi-cult task of establishing negligence. This is contrary to thegeneral trend of widening the bounds of hospital liability."°The dissenters in Perlmutter argued:We have held that where a person orders food in a restaurant• . . it constitutes a sale to which the Personal Property Lawannexes an implied warranty that the food is reasonably fit forconsumption . . . [s]o it has been held with regard to drugs... We cannot logically differentiate those decisions from theone involved here .... 11The dissatisfaction with the Perlmutter decision (the "sale-service"dichotomy) stems from the failure of that court to face the crucial policyconsiderations involved. 2 The simple question is, of course, who shallbear the loss (blood bank, hospital, or patient) when hepatitis"8 is con-very secondary adjunct to the services performed by the hospital and therefore wasnot within the provisions of the Sales Act.7. See Note, Liability for Blood Transfusion Injuries, 42 MtNIN. L. REv. 640 (1958);69 HARV. L. REv. 391 (1955); 37 NoTRE DAME LAW. 565 (1962); 29 ST. JOHNS L. REV. 305(1955); 103 U. PA. L. REV. 833 (1955).8. Cases cited supra note 1.9. 103 U. PA. L. REV. 833, 836 (1955).10. 29 ST. JOHN'S L. REV. 305, 309 & n.31 (1955). The same article went further:The declaration by the legislature that a warranty is implied in the sale of goodsdid not serve to make the fact of sale an inflexible element in the gravamen of thecomplaint, but merely a circumstance which permits an action to be maintained.Recognizing the tort history of warranty and the true nature of the action, it doesnot seem proper to subject the essential condition of a sale to the same rigid scrutinyit must undergo in other actions, purely ex contractu.Id. at 309.11. Perlmutter v. Beth David Hosp., 308 N.Y. 100, 110, 123 N.E.2d 792, 797-98 (1954).12. [AIrguments about "sale" or "service" seem to lead nowhere in this area. Thereal question involved seems to be one of policy. . . . 42 MINN. L. REV. 640, 660(1958).See also 37 NOTRE DAME LAW. 565, 568 (1962):[T~he blood cases are quite out of line with the general trend of authority whichrejects the service sale dichotomy in the major area of food warranties and cer-tainly plays it down in other areas. It is suggested that the findings of "no sale"in the blood cases actually represent unconscious resolution of policy issues ...(Emphasis added.)13. TABER'S CYCLOPEDIC MEDIcAL DICTIONARY (9th ed. 1962). Hepatitis--Inflamma-tion of the liver of infectious or toxic origin. It is manifest by jaundice and in someinstances, liver enlargement. Fever and other systemic disorders are usually present.[VOL. XXI1966] CASES NOTEDtracted as the result of a blood transfusion? The answer demands thatmatters beyond the narrow issue of whether the transfusion is a sale ora service be discussed. Policy considerations are essential. 4The question is complicated by the fact that, at present, no meanshave been devised to destroy the hepatitis virus in whole blood.'5 Theproblem was well stated in Balkowitsch v. Minneapolis War MemorialBlood Bank' where the court quoted from defendant's brief:[T]he risk is inherent in every bottle of blood issued. Theproblems of control are multiple; no donor's history is reallyreliable; any donor may be an innocent carrier; no laboratorytest, or group of tests, is specific for the virus of hepatitis;there is no way of treating the blood to kill the virus withoutviolating essential storage or safety requirements for wholeblood .... "IIt therefore appears evident that the courts, in Perlmutter andsimilar decisions, have been reluctant to impose liability on the hospitalor blood bank, not because of the ficticious concept that a blood trans-fusion is not a "sale," but rather because there is no means availableto detect the harmful virus. Subsequent cases articulated this concernand made it clear that this was the primary motive behind their deci-sions.'8 The inherent weakness of Perlmutter therefore, is that the court14. See Russell v. Community Blood Bank, Inc., 185 So.2d 749, 752 (Fla. 2d Dist. 1966):In light of this patent concern for the public policy involved in this question wefeel compelled to depart from the "sale versus service" category . . . expressions ofsound policy preferences are more in harmony with the doctrine with which wewill be dealing.15. 9 TRAWuATic MEDIcaNE & SURGERY FOR THE ATToRNEY 110 (Cantor ed. 1963).It is estimated that one transfusion in three hundred results in a case of hepatitiswhich can be recognized ... the death rate is about 6 per cent .... Hepatitis doesnot appear to be a preventable complication of blood transfusion. Any donor witha history of the disease or recent contact with the disease is eliminated. Units ofblood with jaundiced plasma are also eliminated. This means that transmitters ofthe disease are healthy people who are unaware that they harbor the virus. It hasnot been possible to destroy the virus in whole blood. It can be destroyed in plasmaonly by prolonged incubation ... attempts to kill the virus by other methods havebeen unsatisfactory, those which kill the virus also injure the plasma proteins.16. 270 Minn. 151, 132 N.W.2d 805 (1965).17. Id. at 807.18. The subject case is perhaps the most explicit:It is evident from our research that although many of the decisions denying recoveryfor breach of implied warranty are based on the technical distinction between aservice and a sale, the factor underlying the decisions is the inability, in the presentstate of medical knowledge, to detect or remove the virus which causes serumhepatitis.Russell v. Community Blood Bank, Inc., supra note 14, at 752. (Emphasis added.)Earlier decisions also made it clear that the "sale-service" dichotomy was not theirmajor concern: Bakowitsch v. Minneapolis War Memorial Blood Bank, supra note 16, at810: "[I]t would be unrealistic to hold that there is an implied warranty as to qualities offitness of human blood on which no medical or scientific information can be acquired. .... ";Diblee v. Dr. W. H. Groves Latter-Day Saints Hosp., 12 Utah 2d 241, 364 P.2d 1085, 1087(1961): "We do not say that hospitals should be immune from negligence. But we do notUNIVERSITY OF MIAMI LAW REVIEWnever voiced this concern. By relying on the "sale-service" dichotomy 9it gave a "slick" solution which never came to grips with the real prob-lem. 20Russell v. Community Blood Bank, Inc.,21 however, began ratherthan ended, with "sale" versus "service." The court decided that thesale of blood by a blood bank was a "sale, 22 and then went on to discussthe real questions involved 8.2  Despite the fact that it "found no case inwhich such a warranty has been implied,"24 the court held that "the lawof implied warranties applies to the transaction before us."'25This courageous thinking brought the court face to face with theproblem that "regardless of the amount of inspection or care ... thedefect of serum hepatitis virus cannot be eliminated."'26 A different hold-ing on the warranty question (in accord with precedent) would havemade a confrontation with this problem unnecessary.Therefore, once implied warranty has been allowed, there seemsthink they should be strapped with an insurability of blood purity, absent negligence.";Gile v. Kennewick Pub. Hosp. Dist., 48 Wash.2d 774, 779, 296 P.2d 662, 667 (1956): "[11tappears ... that the hospital district's negligence was the proximate cause ...and that thesame negligence caused the breach of warranty."19. See note 12 supra.20. The court may have tipped its hand as to the real basis of its opinion in this passingremark:Informed opinion is at hand that there is neither a means of detecting the presenceof the jaundice producing agent in the donor's blood nor a practical method of treat-ing the blood to be used for transfusion so that the danger may be eliminated ...Perlmutter v. Beth David Hosp. 308 N.Y. 100, 106, 123 N.E.2d 792, 795 (1954). This re-mark was quoted in Russell, supra note 14, at 751.The dissenters in Perlmutter also seized upon this remark. After quoting it in full theycommented on the majority's dismissal of the complaint:Thus they rely upon so called medical reports which are neither in the recordnor even mentioned in the briefs-matter which plaintiff has had no opportunityto rebut either by evidence or by argument-indeed, plaintiff is now prevented fromfurnishing any evidence whatever.Id. at 111, 123 N.E.2d, at 796.21. Supra note 14. Note that since Perlmutter dealt with a hospital and Russell a bloodbank, the decisions may be reconciled. But the reasoning in Russell would seem to applyequally well to a hospital as to a blood bank:It seems to us a distortion to take what is, at least arguably, a sale, twist it intothe shape of a service, and then employ this transformed material in erecting theframework of a major policy decision.Russell v. Community Blood Bank, Inc., supra note 14.22. We will now proceed to the real questions involved in this appeal, which arewhether there are any implied warranties attached to the sale of blood by a bloodbank, what these warranties might be, and whether these warranties run to the ulti-mate consumer.Ibid.23. Id. at 753.24. Ibid.25. Ibid.26. Ibid.[VOL. XXICASES NOTEDto be no alternative but to hold the blood bank liable. This has been thestumbling block to other courts. Unable to surmount it, they were forcedto follow Perlmutter.The Russell case, however, was more imaginative. The court pointedout the parallel between the sale of blood and the sale of certain drugswhich are excepted from strict liability because they are "therapeuticproducts, which, in the present state of human knowledge, are incapableof being made absolutely safe for their intended and ordinary uses. 27This doctrine enabled them to distinguish the sale of blood from the saleof tobacco in the Green v. American Tobacco Co.2" decision which heldthat the "seller's actual knowledge or opportunity for knowledge of adefective or unwholesome condition is wholly irrelevant to his liabilityon the theory of implied warranty."'2 9This "unavoidably unsafe" category was first recognized by theFlorida Supreme Court in McLeod v. W. S. Merrell Co." in which thecourt cited the Restatement of Torts8 as authority in refusing to holda druggist liable for breach of implied warranty when a drug producedharmful effects on the purchaser. Under this theory, if the blood cannotbe made safe the suit must fail. "This position," says Russell, "is en-tirely reasonable, as well as being good public policy."82 Accordingly, themistake of Perlmutter8 was not repeated: the complaint was allowed,and the court went on to say that "before the product can be termed'unavoidably unsafe,' there will have to be some factual showing that itcannot be made safe.84Thus the court has arrived at a position where, in order to be suc-cessful, the warranty action must prove something akin to negligence:[W]e have reached a point in which we are stating that a plain-tiff can state a cause of action against a blood bank for breachof warranty, but can only recover for injuries if they werecaused by the failure to detect or remove a deleterious sub-27. Russell v. Community Blood Bank, Inc., supra note 14, at 754.28. 154 So.2d 169 (Fla. 1963). Green is "especially ominous" says the Russell court.Id. at 753.29. Green v. American Tobacco Co., 154 So.?d 169, 170 (Fla. 1963). Quoted in Rus-sell v. Community Blood Bank, Inc., supra note 14, at 753.The Green court also stated at 171:No reasonable distinction can, in our opinion, be made between the physical orpractical impossibility of obtaining knowledge of a dangerous condition, and scien-tific inability resulting from a current lack of human knowledge and skill ...30. 174 So.2d 736 (Fla. 1965).31. RESTATEMENT (SEtcoN), TORTS § 402A, comment k (1965):There are some products which, in the present state of human knowledge, are quiteincapable of being made safe for their intended and ordinary use.32. 185 So.2d, at 754.33. See dissenters' remarks regarding dismissal of complaint. Supra note 18.34. Russell v. Community Blood Bank, Inc., supra note 14, at 754.1966]UNIVERSITY OF MIAMI LAW REVIEWstance capable of detection or removal. Admittedly this lan-guage goes right to the threshold of a suit for negligence.... ,,8 5But the distinction between the two actions was succinctly revealed:[T]he difference between an action in negligence and one in im-plied warranty when dealing with a product "unavoidably un-safe" is to shift the burden of proof."This is so because:[A] complaint for negligent failure to inspect places the onusupon plaintiff to prove the manufacturer negligent ... [where-as] [f]or breach of implied warranty . . . plaintiff must onlyshow that the product was transferred from the manufacturer'spossession while in a defective state, and as a result of the de-fect, the plaintiff was injured.8Then a final caveat:[P]roof that the defect in blood is undetectable and unremov-able would be a defense to breach of implied warranty. How-ever the burden of this proof would be on the blood bank.38A decision which skirts the issue does a disservice. In the subjectcase the court met the problems head on, and carved out law that willendure beyond the time when a means is devised for detecting the serumhepatitis virus in blood.89 When such a means is discovered, other juris-dictions even though they feel that perhaps the blood bank should beliable, may still be reluctant to apply the theory of implied warranty,for by so doing they will be forced to reverse their artificial notion thatthe sale of blood is not a "sale." In Florida, fortunately, the march ofscience will not so soon outmode the law. When the means of detecting theserum hepatitis virus is ultimately discovered, blood will no longer beclassified as an "unavoidably unsafe product." That defense gone, theconsumer-patient will find his just relief under the theory of impliedwarranty.JOHN FROST WALKER35. Ibid.36. Ibid.37. Ibid.38. Ibid.39. Indeed, that time is near. See Berland, New Gains in the War on Hepatitis, Today'sHealth, Aug. 1966, p. 20, 73-74:An even more effective approach-perhaps a final answer-is now being refined ....Dr. Allen remembered . . . that patients who . . . received stored, safe plasma sev-eral months before getting whole blood transfusions never came down with hepati-tis . . . (t)he safe plasma, given first, had made them immune . . . . The result,says the California surgeon, is that patients can be given hepatitis protection muchas children are now given protection against measles: by simultaneous inoculationof tame viruses and strong antibodies.[VOL. XXI

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Blood Banks, Bad Blood, and Implied Warranty

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