[121 NJSuper Page 301] Temporarily Assigned. This is an action by Sarah Brody, individually and as executrix of the estate of Eugene Brody, against a hospital, two blood banks, two doctors and a medical technician, to recover damages for the death, by serum hepatitis infection of the blood, of plaintiff's late husband, Eugene Brody. The essential facts are not in dispute. Eugene Brody was duly admitted
as a paying patient to Overlook Hospital and there received, upon the advice of his physician Cavallaro, a number of blood transfusions. It is alleged that Brody subsequently developed hepatitis; it is uncontroverted that he shortly thereafter expired.
There are several counts to the amended complaint. The first sets forth a cause of action grounded in negligence by each named defendant individually under the Wrongful Death Act, N.J.S.A. 2A:31-1 et seq. The second sets forth a cause of action accruing to plaintiff by reason of pain and suffering endured by decedent. The third count sets out plaintiff's loss of consortium and of services, and the fourth count alleges that defendant hospital (hereafter "Overlook" or "the hospital") breached implied warranties of merchantability and of fitness for particular purpose, by providing decedent with hepatitis-infected blood which ultimately, it is alleged, caused his death. The fifth and sixth counts are against the blood banks and sound in negligence; the seventh and eighth counts, also against the blood banks, sound in breach of warranty.
The court holds the following:
(1) Suit against defendant Cavallaro (alleged to be decedent's attending physician), against defendant Erdman (alleged to be medical director of Overlook's blood bank), and against defendant Benjamin (alleged to be the Overlook medical technologist in charge of blood for transfusion) will come on to the jury on the theory of negligence. The court intimates no opinion as to whether either of the hospital's two employees, or both of them, would be liable to plaintiff under a theory of strict tort liability or under a theory of breach of implied warranties under the Uniform Commercial Code, because no allegations to this effect have been made by plaintiff.
(2)(A) If the jury finds that serum hepatitis virus was in the blood transfused into decedent under the supervision of Overlook Hospital, and that decedent died as a result
of hepatitis, then strict tort liability must be applied to Overlook Hospital.
(B) N.J.S.A. 2A:53A-8 applies only to negligence actions and has no apparent applicability to actions sounding in strict liability. Therefore the amount of damages recoverable is not restricted to the statutory limit.
(3) If the jury finds that decedent died of viral hepatitis, due to contaminated blood at any time under the control of Eastern Blood Bank, the theory of strict tort liability shall apply.
(4)(A) If the jury finds that decedent died of viral hepatitis, due to contaminated blood at any time under the control of Essex County Blood Bank, the theory of strict tort liability shall apply.
(B) N.J.S.A. 2A:53A-7 applies only to negligence actions and has no apparent applicability to actions sounding in strict liability.
The case at bar presents in starkest relief the issue of what measurement of liability should attach to a hospital when hepatitis-infected blood is transfused to a patient under the hospital's care and supervision. The question usually is seen to turn on whether the blood is perceived to be a "product" or "goods" sold to the patient, or whether the blood is merely part and parcel of the "services" supplied by the hospital to the patient.*fn1 If blood is considered a "product"
then, under the Uniform Commercial Code, theories of breach of the warranties of merchantability, N.J.S.A. 12A:2-314, and of fitness for particular use, N.J.S.A. 12A:2-315, are applicable. Equally as applicable is the theory of strict tort liability, i.e. liability on the part of the supplier whether or ...