Conford, Collester and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D. Conford, P.J.A.D. (dissenting).
During a period beginning some six months prior to May 1963 Leopoldo A. Baptista had been treated by Dr. Zins for hypertension. During the night of May 4, 1963 he became seriously ill and when Mrs. Baptista reported his symptons to Dr. Zins the next day, the doctor suggested immediate hospitalization. Leopoldo entered defendant hospital on Sunday, May 5, 1963.
Tests revealed a serious malfunctioning of Leopoldo's kidneys so that body poisons were being built up rather than
eliminated. Dr. Zins decided that use of an artificial kidney would help carry his patient along, with the hope that in the meantime the patient's kidney condition would heal itself. He finally ascertained that there was an artificial kidney available for use at Pollak Hospital in Jersey City. Leopoldo was transferred to the latter hospital on May 10.
In the meantime, on May 9, pursuant to Dr. Zins' directions, defendant hospital had given Leopoldo a blood transfusion. Plaintiff contends that "incompatible" blood was used in the transfusion and that as a result Leopoldo's condition continued to grow worse, ending with his death on May 18, 1963 at Pollak Hospital. Plaintiff offers no criticism of the treatment, including four blood transfusions, which Leopoldo received while at Pollak.
In this action by plaintiff as administratrix ad pros. for damages under the Death Act, N.J.S.A. 2A:31-1 et seq. , and as general administratrix to recover damages for Leopoldo's injuries, pain and suffering, plaintiff charged defendant Saint Barnabas Medical Center with (1) negligence and (2) breach of warranty.
At the close of all the evidence defendant moved for judgment in its favor. While the trial court denied the motion for judgment, it ruled that it would submit the case to the jury only with respect to the allegations of negligence. The verdict returned by the jury was, "We find the defendant not negligent." A subsequent motion by plaintiff for a new trial was denied. Plaintiff appeals.
Plaintiff's principal contention is that the court erred in refusing to submit the case to the jury on the pleaded theory of breach of warranty, and that "the doctrine of strict liability in tort should apply to the furnishing of blood by a hospital to a patient for transfusion purposes." Proper evaluation of these contentions requires a review of the proofs in this case with respect to the alleged incompatibility of the transfused blood.
To support her claim that a transfusion of incompatible blood was a contributing cause of Leopoldo's death, plaintiff
relied on the opinion testimony of a Dr. Graubard, whom she called as an expert witness, and the statement to that effect in the death certificate signed by a Dr. Speckhart, then a resident physician at Pollak Hospital. Dr. Speckhart was on the service of Dr. Lasker, an associate professor of medicine of the New Jersey College of Medicine and the staff physician at Pollak Hospital who was in charge of Leopoldo's case.
The pertinent portion of the death certificate (with the misspellings therein corrected) reads as follows:
Part I. Death was caused by:
Immediate Cause (a) Acute Tubular Necrosis
Conditions, Due to (b) Chronic Glomerulo-
if any, nephritis 1 yr. 3 mos.
which gave Due to (c) Arteriolar Nephro-