Friday, November 16, 2012
Hospital Strict Liability - A 50-State Survey
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 “overwhelming weight of authority” in other states – that a hospital cannot be strictly liable for claimed defects in drugs and medical devices that are used in medical procedures within its walls. Id. at *5. (Note: the defense still lost, but on other grounds).
“Overwhelming” authority, at least when it’s in favor of a pro-defense proposition, is something that we like addressing, so as we hinted in our previous post, we’re looking more deeply into the issue of hospital strict liability. While we almost always represent manufacturers, not hospitals, the notion that they could be strictly 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 would inevitably result in hospitals turning around and pointing the finger at our clients. We don’t like seeing defendants pointing fingers at each other. Almost always, the only beneficiary from that is the plaintiff. Not surprisingly, that’s often the precise reason why smart plaintiffs’ lawyers (don’t kid yourself, most of them are) press such theories.
The first thing we normally do in such situations is 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 are held not to be sellers of products they supply in conjunction with the provision of medical care, regardless of the circumstances.
Restatement (Third) of Torts, Products Liability § 20, comment d (1998). That’s because, in most instances courts have decided that hospitals predominantly provide services, and thus do not qualify as “sellers” subject to strict product liability.
That brings us to the heart of the matter – what are that “strong majority of jurisdictions”?
So we go to the cases.
Right now we’ll concern ourselves with classic “strict liability” – that is the Restatement variety – rather than implied warranty (unless there’s no other relevant authority), which is another way that some plaintiffs attempt to reach an essentially identically result. We do have other things to do after all.
There aren’t any Alabama hospital strict liability cases that we’ve been able to find. If you 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 not been expanded to any other theory. Perhaps there is some statute we don’t know about.
There’s nothing on point in Alaska that we could find about hospital strict liability.
0 for 3. There aren’t any Arizona hospital strict liability cases that we know of. The issue was avoided, in the implied warranty context, in Whitehurst v. American Nat’l Red 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 “merely an incidental feature of the services rendered.” Id. at 585-86.
The Arkansas Supreme Court avoided the issue in Adams v. Arthur, 969 S.W.2d 598, 614 (Ark. 1998) (“we do not decide whether a hospital . . . may be strictly liable as a supplier”). The holding in Adams – that the strict liability claims were barred by the statute of limitations applicable to malpractice claims – is suggestive that no separate cause of action for strict liability exists, but that’s not the ruling. There’s also mention of a holding rejecting hospital strict liability in Kirkendall 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.
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 business of selling or even leasing, bailing or licensing equipment to the physician. It is in the business of providing medical services to its patients. . . . The fact the hospital provides equipment for the physician's use is incidental to the overriding purpose of providing medical services”); Pierson v. Sharp Memorial Hospital, Inc., 264 Cal. Rptr. 673, 676 (Cal. App. 1989) (“hospitals a[re] providers of professional medical services rather than producers or marketers of products”; hospital room furnishings not sued for medical purposes were exception); Hector v. Cedars-Sinai Medical Center, 225 Cal. Rptr. 595, 599 (Cal. App. 1986) (hospital “is not “engaged in the business of distributing [products] to the public . . . and does not play an integral 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] as part of the medical services it provides is not a seller engaged in the business of selling [products]”; possible exception for “activities not integrally related to its primary function of providing medical services”).
St. Luke’s Hospital v. Schmaltz, 534 P.2d 781, 784 (Colo. 1975) (“the reasoning of the majority of case law leads us to the conclusion that public policy did not require the imposition of liability without fault on hospitals on the basis of . . . strict liability”).
Zbras v. St. Vincent’s Medical Center, 880 A.2d 999, 1002 (Conn. App. 2005) (a hospital “can bill for goods provided incidental 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 of our product liability statute”); Zelle v. Bayer Corp., 2012 WL 1435192, at *4 (Conn. Super. Feb. 2, 2012) (“argument[s] that the hospital is a product seller would have profound negative impact upon the services provided by a hospital to members of the public”; “the hospital is not selling the product but is offering the service”); Lambert v. Charlotte Hungerford Hospital, 2006 WL 3491275, at *2 (Conn. Super. Nov. 2, 2006) (“when a hospital provides the surgeon with hardware to perform a surgical procedure, it is performing a service and not selling a product”); Herrick v. Middlesex Hospital, 2005 WL 1760785, at *5 (Conn. Super. June 27, 2005) (a “hospital is in the business of providing a service and that its ancillary role in providing surgeons who use the hospital's facilities for medical operations with needed supplies, including the [product] in question, does not undermine the hospital’s primary role as a provider of services and not of products”); Ferguson v. EBI Medical Systems, 1995 WL 462438, at *5 (Conn. Super. Aug. 1, 1995) (the hospital “was a provider of services of which the [products] were an incidental part, rather than a ‘product seller’” under the Connecticut product liability statute).
We didn’t find any Delaware hospital strict liability cases (probably because Delaware does not recognize strict liability), however, claims for hospital implied warranty have been rejected, for similar sales/service reasons, in Spaeder v. University of Delaware, 2007 WL 3105100, at *3 (Del. Super. Oct. 17, 2007), and Flowers v. Huang, 1997 WL 34724064, at *2-4 (Del. Super. Aug. 20, 1997).
District of Columbia
Fisher v. Sibley Memorial Hospital, 403 A.2d 1130, 1133 (D.C. 1979) (strict liability “would mean that the hospital, no matter how careful, would be held responsible, virtually as an insurer, if the patient were harmed”); Iacangelo v. Georgetown University, 2006 WL 4391359, at *5 (Mag. D.D.C. Oct. 11, 2006) (“the weight of uncontradicted legal authority suggests that courts do not apply this doctrine [strict liability] to a hospital . . . for injuries caused by medical instruments, drugs or other substances used in treatment”), adopted in pertinent part, 2007 WL 915224 (D.D.C. March 26, 2007); Kozup v. Georgetown University, 663 F. Supp. 1048, 1058, (D.D.C. 1987) (granting summary judgment against hospital strict liability claim under Fisher), aff’d in part & vacated in part on other grounds, 851 F.2d 437 (D.C. Cir. 1988).
NME Hospitals, Inc. v. Azzariti, 573 So.2d 173, 173 (Fla. App. 1991) (“[a] hospital that utilizes an alleged defective product only in the course of its primary function of providing medical services is not subject to an action of strict liability where the professional services could not have been rendered without using the product”); North Miami General Hospital, Inc. v. Goldberg, 520 So.2d 650, 652 (Fla. App. 1988) (“[h]ospitals are not ordinarily engaged in the business of selling products or equipment used in the course of their primary function of providing medical services, and strict liability will not be imposed”).
McCombs v. Southern Regional Medical Center, Inc., 504 S.E.2d 747, 749 (Ga. App. 1998) (“[plaintiff] did not go to [the hospital] to purchase a [product] but to have her spinal problem surgically repaired”).
We found no hospital strict liability cases, or anything analogous, in Hawaii.
The same is true of Idaho.
Illinois used to allow this kind of thing (at least under the guise of warranty). Not any longer. Brandt v. Boston Scientific Corp., 792 N.E.2d 296, 303 (Ill. 2003) (“services, the medical treatment, were the primary purpose of the transaction between [plaintiff] and the [hospital], and the purchase of the [product] was incidental to the treatment”) (overruling prior contrary precedent); Greenberg v. Michael Reese Hospital, 415 N.E.2d 390, 395 (Ill. 1980) (“we conclude that public policy dictates against the imposition of strict liability in tort for injuries resulting from the [use of products] by a hospital”).
St. Mary Medical Center, Inc. v. Casko, 639 N.E.2d 312, 315 (Ind. App. 1994) (“the essence of [the hospital’s] conduct in this case is not that of a seller of [products] but rather that of a provider of medical services. As such, it cannot be subject to strict liability for a defective product provided to a patient during the course of his or her treatment”).
We found no hospital strict liability cases, or anything analogous, in Iowa.
Ditto for Kansas.
Ditto for Kentucky.
See La. Rev. Stat. §9:2797 (overruling DeBattista v. Argonaut-Southwest Insurance Co., 403 So.2d 26 (La. 1981), which allowed hospital strict liability), as discussed in Christiana v. Southern Baptist Hospital, 867 So.2d 809, 817 (La. App. 2004). Note: all of these cases, pro and con, were blood transfusion cases, as was the statute. See also Huffaker v. ABC Insurance Co., 659 So.2d 544, 545-46 (La. App. 1995) (strict liability claims against hospital involving medical device fell under Medical Malpractice 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) (strict liability claim regarding defective hospital bed not used for medical treatment was viable).
We didn’t find any hospital strict liability cases in Maine, but the concept that the sales/service distinction “exempt[s] hospitals from strict liability for obtaining medical devices and products that are used by physicians in medical procedures” was cited favorably in Herzog v. Arthrocare Corp., 2003 WL 1785795, at *13 (D. Me. March 21, 2003), a case involving 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 strict liability claims against physicians).
Roberts v. Suburban Hospital, 532 A.2d 1081, 1088-89 (Md. App. 1987) (hospital not strictly liable; “[i]t would be artificial at best, and probably inaccurate, to conclude as a matter of law that the product predominates over the service”).
There’s practically no law in Massachusetts on hospital 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 the extremely loose any “arguable reasonable basis” standard for fraudulent joinder. It held that “the fact that there is no definitive Massachusetts case law on this question, it is plausible that the Massachusetts Supreme Judicial Court (“SJC”) would follow the few state courts which have held that a hospital can be deemed a seller or distributor of medical devices for the purposes of a product liability claim.” Id. at 217. Phillips was unable to identify any case anywhere that had allowed a strict liability (as opposed to warranty) claim against a hospital. We also note that in Heinrich v. Sweet, 49 F. Supp.2d 27, 41-42 (D. Mass. 1999), the court, applying Massachusetts law, rejected another form of strict liability (abnormally dangerous activity) against a hospital in a suit over medical treatment.
Ayyash v. Henry Ford Health Systems, 533 N.W.2d 353, 355 (Mich. App. 1995) (“[b]ecause the primary function of . . . hospitals is to provide care, not to manufacture or distribute products, those economic theories that underlie the imposition of strict liability upon makers and sellers of products do not justify the extension of strict liability to those who provide medical services”); Leith v. Henry Ford Hospital, 2000 WL 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).
Femrite v. Abbott Northwestern Hospital, 568 N.W.2d 535, 543 (Minn. App. 1997) (“Minnesota courts have never recognized the doctrine of [hospital] strict liability for administrative services, and . . . we decline to recognize this cause of action here”).
Roell v. Stryker Corp., 2007 WL 2783357, at *3 (S.D. Miss. Sept. 21, 2007) (“the plain language of the [Mississippi product liability] statute and case authority” establishes that a hospital “is not a seller’”).
Missouri is another state that used to allow hospital strict liability, but thought better of it. Budding v. SSM Healthcare System, 19 S.W.3d 678, 682 (Mo. 2000) (malpractice statute “eliminate[d] liability of health care providers for strict products liability”; overruling prior cases that had allowed hospital strict liability).
There’s no case law directly addressing hospital strict liability in Montana, however, in Hutchins v. Blood Services, 506 P.2d 449 (Mont. 1973) (blood transfusion case), the court appeared to reject strict liability, without ever mentioning it, stating that if a hospital “without the slightest evidence of deviation from approved medical practice” could be forced “ipso facto to pay damages any time a person whose life they save suffers an untoward result,” the “enterprise would be hazardous and self-defeating.” Id. at 453.
We didn’t find anything about hospital strict liability in Nebraska.
There’s no hospital strict liability precedent in Nevada that we could find. However, in Renown Health v. Vanderford, 235 P.3d 614 (Nev. 2010), the court rejected another “strict liability concept” – the nondelegable duty – when sought to be applied to a hospital. Id. at 616.
Royer v. Catholic Medical Center, 741 A.2d 74, 78 (N.H. 1999) (“medical services are distinguished by factors which make them significantly different in kind from the retail marketing enterprise”; “a health 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).
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 liability improper for “sound policy reasons”) (per curiam); Snyder v Mekhjian, 582 A.2d 307, 313 (N.J. Super. App. Div. 1990) (“for purposes of product liability law, a hospital cannot be held strictly liable for a latently defective 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]ur courts have refused to impose strict liability on health care providers”); Baptista v. 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 strict liability” to hospitals; “[t]o adopt such a rule would be to make a hospital an insurer of what are in essence medical services and opinions”), aff’d on opinion below, 270 A.2d 409 (N.J 1970).
Hines v. St. Joseph's Hospital, 527 P.2d 1075, 1077 (N.M. 1974) (“under no theory would [a hospital] be independently liable under strict liability”); Parker v. St. Vincent Hospital, 919 P.2d 1104, 1110-11 (N.M. App. 1996) (“Having analyzed the policies favoring strict products liability in the context of potential hospital liability for defectively designed medical products selected by treating physicians, we conclude that such liability is inappropriate. Although we have not followed other jurisdictions which have held that hospitals are not distributors of medical products, we find support for our conclusion in the results reached by the majority of courts that have considered strict-products-liability claims against hospitals.”).
Perlmutter v. Beth David Hospital, 123 N.E.2d 792, 796 (N.Y. 1954) (“when one enters a hospital as a patient; he goes there, not to buy [products], but to obtain a course of treatment in the hope of 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.2d 263, 264 (N.Y. App. Div. 1989) (use of a product in plaintiff’s treatment “did not constitute a ‘sale’ of the device as required for a cause of action sounding in products liability”; use of the product was “incidental to medical treatment”); 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 the product “was incidental to the medical services provided by the [hospital]”); Iannucci v. Yonkers General Hospital, 399 N.Y.S.2d 39, 39 (N.Y. App. Div. 1977) (“public policy . . . is contrary to the imposition of strict products liability” against a hospital); Jennings v. Roosevelt Hospital, 372 N.Y.S.2d 277, 280-81 (N.Y. Sup. 1975) (following Perlmutter); Simone v. 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 strict liability cases the essence of the transaction relates solely to the article sold, the seller is in the business of supplying the product to the consumer and it is that, and that alone for which he is paid”; these “distinctions compel the conclusion that a hospital is not engaged in the business of distributing [products] to the public”); Tucker v. Kaleida Health, 2011 WL 1260117, at *3 (W.D.N.Y. March 31, 2011) (“the nature of the relationship between hospital and patient is that of a service, rather than a sale”; “a patient's receipt of tangible materials is merely an incidental adjunct to the services performed, and the service provider is not a seller for products liability purposes”); Pantano v. Telectronics Pacing Systems, Inc., 1996 WL 107099, at *1 (W.D.N.Y. Feb. 15, 1996) (“plaintiffs cannot state a strict products liability claim against the Hospital because, under New York law, a hospital is not considered a seller, designer or manufacturer of the medical supplies it provides incidental to its provision of medical services”); Weissman v. Dow Corning Corp., 892 F. Supp. 510, 518 (S.D.N.Y. 1995) (the law “does not hold that a medical care provider may be sued for negligence based on a theory that it is a seller of a defective product, but because of negligence in the performance of a hospital administrative function”); Samuels v. Health & Hospital Corp., 432 F. Supp. 1283, 1284-85 (S.D.N.Y. 1977) (“the doctrine of strict liability in tort is inapplicable to the service by the hospital of providing [a product]”).
Although it could have just held that North Carolina has never recognized strict liability at all (indeed, strict liability is statutorily prohibited), an MDL court nonetheless decided the hospital strict liability issue on the merits in In re TMJ Implants, 872 F. Supp. 1019, 1036 (D. Minn. 1995), (“follow[ing] the general proposition that health care providers should not be held liable for claims based on products liability”), aff’d, 97 F.3d 1050 (8th Cir. 1996) (applying North Carolina law).
Nothing on point in North Dakota.
Surprisingly, given the size of the state, there’s not much law in Ohio on hospital strict liability. A hospital was determined not strictly liable as 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 the case was an interpretation of a blood shield statute where the legislature had defined the transaction as a service. In Saylor v. Providence Hospital, 680 N.E.2d 193, 196 (Ohio App. 1996), the court allowed a “products liability inadequate-warning claim” to survive against a hospital, although it did not articulate any reason, other than it being sufficiently pleaded, why the claim could state a cause of action.
Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193, 1217 n.22 (10th Cir. 2002) (“an overwhelming majority of jurisdictions have refused to apply strict liability principles to claims against hospitals and physicians involving the distribution of allegedly dangerous drugs or medical devices”); Von Downum v. Synthes, 2012 WL 5463900, at *3 (N.D. Okla. Nov. 8, 2012) (“Oklahoma courts have consistently declined to hold physicians and hospitals to a standard of strict liability”).
No Oregon case has ever allowed hospital strict liability – but no Oregon court has explicitly rejected it either. Thus, in Snyder v. Davol, Inc., 2008 WL 113902 (D. Or. Jan. 7, 2008), under the extremely broad fraudulent joinder standard, speculated that Oregon might run contrary to “the clear weight of authority from other jurisdictions” and allow such a claim. Id. at*7.
Cafazzo v. Central Medical Health Service, Inc., 668 A.2d 521, 524 (Pa. 1995) (“provision of medical services is regarded as qualitatively different from the sale of products, and, rather than being an exception to [strict liability], is unaffected by it”); Podrat v. Codman-Shurtleff, Inc., 558 A.2d 895, 898 (Pa. Super. 1989) (“the hospital could not be liable under a theory of strict liability because the hospital was not in the business of selling this instrument, its use was only incidental to the hospital’s primary function of providing medical services and the medical services could not have been rendered without the use of this product”); Eby v. 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 of the Restatement (Second) of Torts as a seller of a product”); Flynn v. Langfitt, 710 F. Supp. 150, 152 (E.D. Pa. 1989) (dismissing hospital strict liability claim); contra Karibjanian v. Thomas Jefferson University Hospital, 717 F. Supp. 1081, 1085 (E.D. Pa. 1989) (pre-Cafazzo).
There are no cases that we could find directly addressing hospital strict liability in Puerto Rico, however, there is this dictum 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-care provider cannot be held strictly liable for a latent defect in a medical device manufactured by a third party.” Id. at 79 n.5
There’s no law on hospital strict liability or any analogous claim in Rhode Island.
In re Breast Implant Product Liability Litigation, 503 S.E.2d 445, 451 (S.C. 1998) (“health care providers may not be held strictly liable . . . for products used in the course of providing medical treatment”); Pleasant v. Dow Corning Corp., 1993 WL 1156110, at *2 (D.S.C. Jan. 7, 1993) (“because hospitals are primarily engaged in the business of providing medical services, rather than selling products, strict liability should not be imposed if the medical services involve the use of a product”).
There’s no law directly concerning hospital strict liability 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 and commercial lessors.
Oddly, the issue of hospital strict liability in Tennessee does not seem to have arisen outside of the context of blood/tissue products, as to which liability is precluded by statute. Sawyer v. Methodist Hospital, 522 F.2d 1102, 1105 (6th Cir. 1975); McDaniel v. Baptist Memorial Hospital, 469 F.2d 230, 232-33 (6th Cir. 1992); both construing Tenn. Code Ann. §47-2-316(c)(5). The statute has been extended to strict liability, even though on its face it only relates to warranty claims.
Cobb v. Dallas Fort Worth Medical Center-Grand Prairie, 48 S.W.3d 820, 826 (Tex. App. 2001) (“hospitals are not engaged in the business of selling the products or equipment used in the course of providing medical services”); Easterly v. Hospital of Texas, Inc., 772 S.W.2d 211, 213 (Tex. App. 1989) (“[t]he hospital is not in the business of selling [prescription medical products] separate from the medical relationship between doctor and patient involving the furnishing of medical services”); Nevauex v. Park Place Hospital, Inc., 656 S.W.2d 923, 926 (Tex. Civ. App. 1983) (“[s]trict liability does not apply to defective services”), writ ref’d n.r.e.; Shivers v. Good Shepherd Hospital, Inc., 427 S.W.2d 104, 107 (Tex. Civ. App. 1968) (rejecting §402A strict liability against hospital for administration of prescription drug), writ ref’d n.r.e.; Vergott v. Deseret Pharmaceutical Co., 463 F.2d 12, 16 n.5 (5th Cir. 1972) (“a hospital is not a 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 hospital gown, as opposed to a prescription medical product), writ ref’d n.r.e.
There is no law in Utah on hospital strict liability. However, the rationale of cases rejecting such liability was cited favorably in Utah Local Government Trust v. Wheeler Machinery Co., 199 P.3d 949, 954-55 (Utah 2008), a non-hospital case concerning 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 its patients, but it was in large part based on the concept of hospitals of charitable institutions, and thus should be viewed with some caution.
We didn’t find any hospital strict liability cases in Vermont. In a relatively old case a federal district court went out on a limb (something it should not have done under Erie principles) and predicted that a hospital might be liable under a implied warranty theory. Mauran v. Mary Fletcher Hospital, 318 F. Supp. 297, 300 (D. Vt. 1970), but no case has followed up on this prediction in over forty years.
Virginia doesn’t recognize strict liability at all, so there’s not much law. However, in the implied warranty context, the court in Coffman v. Arthrex, Inc., 2005 WL 4827394, at *2 (Va. Cir. March 31, 2005), relied on the reasoning of hospital strict liability cases to reject an implied warranty cause of action. Conversely, another anything goes (“slight possibility of a right to relief”) fraudulent joinder decision speculated that Virginia might allow an implied warranty claim against a hospital in Sanders v. Medtronic, Inc., 2006 WL 1788975, at *11 (E.D. Va. June 26, 2006) (“this does not mean that the court believes that the plaintiff would necessarily prevail on her claim”).
Howell v. Spokane & Inland Empire Blood Bank, 785 P.2d 815, 821 (Wash. 1990) (“[T]he contractual relationship between a hospital and a patient is not one of sale but is one of service; that during treatment in the hospital [products], for which additional charges are made, may be transferred from the hospital to the patient; and yet the transfer is an incidental feature of the transaction and not a sale”); McKenna v. Harrison Memorial Hospital, 960 P.2d 486, 489 (Wash. App. 1998) (“[plaintiff] entered [the hospital], not to purchase [a product], but to receive the surgery to which [it] was incidental. And in providing ancillary surgical services, [the hospital] was not a seller of the device, but rather a provider of professional services. [It] is, therefore, exempt from liability for the [product] under the Washington Product Liability Act”);’ see Doyle v. Planned Parenthood of Seattle-King County, Inc., 639 P.2d 240, 243 (Wash. App. 1982) (rejecting strict liability claim asserted against medical clinic).
Blankenship v. Ethicon, 656 S.E.2d 451, 458-59 (W. Va. 2007) (hospital strict liability claim barred by medical malpractice 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 to persons rendering . . . services”); see Foster v. Memorial Hospital Ass’n of Charleston, 219 S.E.2d 916, 919-20 (W. Va. 1975) (rejecting implied warranty claim against hospital in blood case under sale/service distinction; following New York Perlmutter case).
Hoven v. Kelble, 256 N.W.2d 379, 392 (Wis. 1977) (“moving from the malpractice concept even with its many problems to a strict liability system at the present time appears to be a dubious move”); Satorius v. Proassurance Wisconsin Insurance Co., ___ N.W.2d ___, 2012 WL 5319213 ¶¶19-21 (Wis. App. Oct. 30, 2012) (rejecting theory that court interpreted as hospital strict liability under Hoven); Hoff v. Zimmer, 746 F. Supp. 872, 876 (W.D. Wis. 1990) (“[w]hether the [claim] against [the hospital] alleges damages arising from a defective product or damages arising from defective services, 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).
Nope. Nothing on hospital strict liability from Wyoming.
* * * *
In sum, the precedent rejecting hospital strict liability is, indeed, “overwhelming.” As to strict liability, there’s practically no precedent at all. A few old implied warranty cases are out there, but the only recent precedent that doesn’t throw out these claims are some fraudulent joinder decisions where courts have required parties removing cases to federal court to prove a negative where the plaintiff has raised novel claims with zero support that no other court has even considered.