Albert F. CAFAZZO, and Tammy J. Cafazzo, his wife, Appellants, v. CENTRAL MEDICAL HEALTH SERVICES, INC., a corporation, Central Medical Pavilion, Inc., a corporation, and Norman Stern, D.M.D., Appellees.
Supreme Court of Pennsylvania.
Nov. 28, 1995.
668 A.2d 521
Argued March 7, 1995.
Accordingly, we affirm the verdict and the sentence of death imposed upon appellant, Aaron Jones, by the Court оf Common Pleas of Philadelphia County.33
CAPPY, J., concurs in the result.
MONTEMURO, J., participates by designation as a senior judge as provided by
Laurence M. Kelly, Kelly & Kelly, Montrose, for Pennsylvania Trial Lawyers.
David B. White, Stella L. Smetanka, Sherry L. Halfhill, Burns, White & Hickton, Pittsburgh, for Norman Stern.
Louis C. Long, Julie Fields Sweeney, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, for Central Medical Health Services, Inc. & Central Medical Pavilion, Inc.
Roland D. Morris, Mark B. Schoeller, Duane, Morris & Heckscher, Philadelphia, for Hospital Association of Pennsylvania.
Robert B. Hoffman, Reed, Smith, Shaw & McClay, Harrisburg, for Pennsylvania Medical Society.
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.
MONTEMURO, Justice.
In this case of first impression, we are presented with the question of whether a hospital and a physician can be held subject tо strict liability under the Restatement of Torts (Second) § 402A, for defects in a product incidental to the provision of medical services.
In 1986, appellant Albert Cafazzo underwent surgery for implantation of a mandibular prosthesis. In 1992, some time after it was discovered that this device was defective, a complaint1 was filed against appellees, the physician who performed the surgery and the hospital where the operation took place, claiming that “all defendants sell, provide or use certain prosthetic devices,” and that they should be held strictly liable as having “provided, sold or otherwise placed in the stream of commerce products manufactured by Vitek, Inc., known as Proplast TMJ Implants.” The complaint alleged that the prosthesis was defectively designed, unsafe for its intended use, and lacked any warning necessary in order to ensure safety.
Appellees’ preliminary objections in the nature of a demurrer were granted by the trial court which concluded that appellant had failed to statе a claim cognizable under Pennsylvania law, and the Superior Court affirmed. We granted allocatur to determine whether liability will attach under the circumstances of this case.
In reviewing a dismissal on the pleadings in the nature of a demurrer, the averments of the complaint must be taken as true except to the extent that they constitute conclusions of law. Cianfrani v. Commonwealth, State Employees Retirement Board, 505 Pa. 294, 479 A.2d 468 (1984). Thus we are not compelled to accept appellants’ legal analysis, only their recitation of the facts. Whether appellees are sellers for the purposes of 402A is the central issue in this matter, and, therefore, appellants’ assertion that appellees are in fact,
This Court finds that the answer to the initial question is a nеgative, and further holds that even if appellees could be shown to have “marketed” the prosthesis, strict liability does not apply.
Section 402A of the Restatement (Second) of Torts, provides in relevant part as follows:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if:
(a) the seller is engaged in the business of selling such a produсt, and
(b) it is expected to and does reach the consumer without substantial change in the condition in which it is sold.
While we do not slavishly adhere to the language of 402A, the rule enunciated there, as with other non-statutory declarations, is a common law pronouncement by the court, which “always retains the right and the duty to test the reason behind a common law rule in determining the applicability of such a rule to the facts before it.” Coyle v. Richardson-Merrell, Inc., 526 Pa. 208, 212, 584 A.2d 1383, 1385 (1981). What appellants would have us do is to apply the rule while ignoring the facts of this case, after having accepted as a “fact” the central issue which must be resolved in order to determine whether application of the rule is proper. Such a procedure makes a mockery of the idea behind strict liability, i.e., that it inheres only in situations where a defective product has been provided by a seller “engaged in the business of selling such a product.”
In Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 562 A.2d 279 (1989), this Court observed that “the broadened
In this instance, the manufacturer is in bankruptcy, and unable to sustain liability. Thus, an alternative, and solvent, payor was sought. All other considerations were subordinated to this objective, hence the unequivocal necessity, in appellants’ view, for appellees to be designated as sellers irrespective of the actual facts of this matter. However, to ignore the ancillary nature of the association of product with activity is to posit surgery, or indeed any medical service requiring the usе of a physical object, as a marketing device for the incorporated object. This is tantamount to deciding that the surgical skills necessary for the implantation of, e.g., mandibular prostheses, are an adjunct to the sale of the implants. Moreover, under such a theory, no product of which a patient in any medical setting is the ultimate consumer, from CT scanners to cotton balls, could escape the assignment of strict liability. Clearly, the relationship of hospital and/or doctor to patients is not dictated by the distribution of such products, even if there is some surcharge on the price of the product. As the New York Court of Appeals has aptly stated,
Concepts of purchase and sale cannot be separately attached to the healing materials . . . supplied by the hospital for a price as part of the medical services. That the property or title to certain items of medical material may be transferred, so to speak, from the hospital to the patient
The thrust of the inquiry is thus not on whether a separate consideration is charged for the physical material used in the exercise of medical skill, but what service is performed to restore or maintain the patient‘s health. The determinative question becomes not what is being charged, but what is being done. See Hoff v. Zimmer, 746 F.Supp. 872 (W.D.Wis.1990) (strict liability not applied to hospital for failure of hip prosthesis); Easterly v. HSP of Texas, Inc., 772 S.W.2d 211 (Tex.Ct.App.1989) (strict liability not applied to hospital which supplied epidural kit containing defective needle); Hector v. Cedars-Sinai Medical Center, 180 Cal.App.3d 493, 225 Cal.Rptr. 595 (1986) (strict liability not applied to hospital for defective pacemaker); Silverhart v. Mount Zion Hospital, 20 Cal.App.3d 1022, 98 Cal.Rptr. 187 (1971) (strict liability not applied to dentist whose drill broke during use on patient; Magrine v. Krasnica, 94 N.J.Super. 228, 227 A.2d 539 (1971), aff‘d 100 N.J.Super. 223, 241 A.2d 637 and 53 N.J. 259, 250 A.2d 129 (1971) (strict liability not applied to dentist whose drill broke while in use on patient).
The cases cited above have been labelled by some the exponents of a “service exception” to 402A. However, the very term “service exception” is misleading, since it presupposes that the distinction drawn where medical personnel/hospitals are involved is an artificial one. The cases, however, make clear that provision of medical services is regarded as qualitatively different from the sale of products, and, rather than being an exception to 402A, is unaffected by it. See Hector v. Cedars-Sinai Medical Center, Inc., 180 Cal.App.3d 493, 225 Cal.Rptr. 595 (1986). To quote the Superior Court‘s holding in Podrat v. Codman-Shurtleff, Inc., 384 Pa.Super. 404, 558 A.2d 895 (1989), alloc. dn‘d., 524 Pa. 609, 569 A.2d 1368 (1989),
[appellees] could not be liable under a theory of strict liability because [they were] not in the business of selling th[e implant], its use wаs only incidental to [appellees‘] primary function of providing medical services, and the medical services could not have been rendered without the use of this product.
This distinction is made clearer by the fact that case law also supports the application of 402A where what has been provided is not medical service or products connected with diagnosis and treatment, but rather materials related to mechanical or administrative functions. See Thomas v. St. Joseph Hospital, 618 S.W.2d 791 (Tex.Civ.App.1981) (hospital held strictly liable where hospital gown ignited when lighted match fell on it); Silverhart v. Mount Zion Hospital, 20 Cal.App.3d 1022, 98 Cal.Rptr. 187 (1971) (hospital would be found liable where not engaged in activities integrally related to primary function of providing medical services, e.g., defective product sold in gift shop).
In this connection, it must be noted that the “seller” need not be engaged solely in the business of selling products such as the defective one to be held strictly liable. An example supporting this proposition appears in comment f of the Restatement (Second) of Torts, § 402A and concerns the owner of а motion picture theater who offers edibles such as popcorn and candy for sale to movie patrons. The analogue to the instant case is valid in one respect only: both the candy and the TMJ implant are ancillary to the primary activity, viewing a film or undergoing surgery respectively. However, beyond that any comparison is specious. A movie audience is free to purchase or not any food items on offer, and regardless of which option is exercised the primary activity is unaffectеd. On the other hand, while the implant was incidental to the surgical procedure here, it was a necessary adjunct to the treatment administered, as were the scalpel used to make the incision, and any other material objects involved in performing the operation, all of which fulfill a particular role in provision of medical service, the primary activity. Once the illness
[W]hen one enters the hospitаl as a patient[,] he goes there, not to buy medicines or pills, not to purchase bandages or iodine or serum or blood, but to obtain a course of treatment in the hope of being cured of what ails him.
Perlmutter v. Beth David Hospital, 308 N.Y. 100, 106, 123 N.E.2d 792, 795 (1954).
We find, consistent with the decisions cited above which distinguish medical services from merchandising, that in the first instance, appellees are not sellers, providers, suppliers or distributors of products such as to activate 402A.
Then, even assuming that providers of medical services could reasonably be termed sellеrs, in examining the test relied upon by appellants to “prove” their major premise, the policy reasons for strict liability are not present.
The test was posited by this Court in Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977), to determine whether a particular supplier of products, whose status as a supplier is already determined, is to be held liable for damages caused by defects in the products supplied. It was first concluded that a lessor of hauling equipment could properly be considered a supplier after the application of a four part inquiry, which focusses initially on which members of the marketing chain are available for redress; then asks whether imposition of liability would serve as an incentive to safety; whether the supplier is in a better position than the consumer to prevent the circulation of defective products; and, finally, whether the supplier can distribute the cost of compensation for injuries by charging for it in his business. Id. at 368-369, 372 A.2d at 739.
Appellants, ignoring the precondition necessary for application of this analysis, that is, establishment of the appellees as sellers, would nevertheless apply it. Even were we to do so, appellees would not be found liable.
Next сomes the matter of whether applying strict liability would provide an incentive to safety. As the Superior Court correctly pointed out, the safety of the product depends on the judgment of those connected to the research, development, manufacture, marketing and sale of the product. Cafazzo v. Central Medical Health Services, 430 Pa.Super. 480, 487, 635 A.2d 151, 154 (1993). Moreover, the safety testing and licensing for use of medical devices is a responsibility specifically undertaken by the federal government. Therefore, imposing liability for a poorly designed or manufaсtured product on the hospitals and doctors who use them on the assurances of the FDA3 is highly unlikely to effect changes of this sort. Again,
As to the related matter of restricting circulation of defective products, appellees and those similarly situated have no control over distribution. In Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 562 A.2d 279 (1989), this Court noted that the “[control] factor implies the existence of some ongoing relationship with the manufacturer from which some financial advantage inures to the benefit of the latter and which confers some degree of influence on the [putative seller.]” Id. at 374, 562 A.2d at 282.
The influence described is that of the putative seller, i.e., doctor/hospital, on the manufacturing process. Id. However, in finding the relationship between auctioneer and product too tenuous to justify assignment of liability, the Musser Court notes that the catalogue of items for sale listed more than ninety different tractors, for each of which the auctioneer would have to be held striсtly liable were 402A applied in the auction context. The list is easily comparable to the many items employed in surgery, which includes but is not limited to surgical instruments, medical devices such as the implant, anesthesia machine and accoutrements, drugs, bandages and dressings, surgical apparel and operating suite furniture, such as the table on which the procedure is performed.
The implications of the ruling espoused by appellants extend far beyond responsibility for a defective TMJ, and thus bring into sharp relief the рroblems surrounding any notion that it is enumerated products which should be exempted from the application of 402A. The difficulties inherent in such a course are obvious; particularly in medicine, the changes in technology are such that even definitional problems may arise. As an example, for purposes of 402A, is gene therapy a drug, and thus exempt under comment k, or a device or something else altogether? Who is to determine such exemptions, and at what time intervals?
See
Finally,
[B]efore a change in the law is made, a court, if it is to act responsibly must be able to see with reasonable clarity the results of its decision and to say with reasonable certainty that the change will serve the best interests of society.
Id. at 471, 256 N.W.2d at 391.
The consequences of a step such as appellant would have us take are of such magnitude, and of such potentially negative
For these reasons, the order of the Superior Court is affirmed.
CAPPY, J., files a dissenting opinion.
MONTEMURO, J., participates by designation as a senior judge as provided by
CAPPY, J., dissenting:
I am deeply troubled by the majority‘s opinion and therefore must respectfully dissеnt.
My first point of concern is with the primacy given by the majority to the law of our sister states. The majority‘s reason for subordinating our case law to that of other jurisdictions is unclear. Relying on the decisions of other state courts is a wise course of action where we are taking an initial venture into an area of law; yet, that is not the case here. In this Commonwealth, we are fortunate to have an extensive and well-established body of law defining which defendants may be considered “sellers/suppliers” within § 402A of the Restatеment (Second) of Torts. See, e.g., Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977);1 Coyle v. Richardson-Merrell, Inc., 526 Pa. 208, 584 A.2d 1383 (1991). My objection to relying on the law of our sister states is not
In addition to the unexplained deference to the law of foreign jurisdictions, the majority has also distorted our established case law. In analyzing the Francioni test, the majority has presented a muddled view of the test‘s purpose and an imperfect application of the test‘s prongs.
First, the majority has presented conflicting views on the purpose of the Francioni test. The majority initially states that the Francioni test is applicable only after the defendant‘s status as a “seller/supplier” has been determined. Maj. op. at p. 533-534. (“The test was posited by this Court in Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977), to determine whether a particular supplier of products, whose status as supplier is already determined, is to be held liable for damages.” Maj. op. at p. 534 (emphasis supplied).) Yet, immediately following that statement, the majority acknowledges that the Francioni test is the method for determining who is a “seller/supplier.” (The Francioni Court concluded that “a lessor of hauling equipment could properly be considered a supplier after the application of a four part inquiry. . . .” Maj. op. at p. 534 (emphasis supplied).) I am worried that these contradictory statements could lead to confusion about the proper role for Francioni.
In addition to the arguably conflicting views on the purpose of the Francioni test, the majority‘s application of that test is far from faithful. The first example of the majority‘s misapplication of Francioni is with its analysis of the first prong of that test. The first prong of Francioni requires this Court to examine whether the defendant is in the marketing chain of
Second, the majority also distorts the Francioni prong which directs the Court to ascertain whether this defendant is in a better position than the consumer to prevent the circulation of defective products. The majority commences its analysis of this point by recognizing that the focus of this inquiry is on whether there is “some ongoing relationship with the manufacturer from which some financial advantage inures to the benefit of the latter and which confers some degree of influence on the [putative seller.]” Musser v. Vilsmeier Auction Company, 522 Pa. 367, 374, 562 A.2d 279, 282 (1989). The majority, however, rapidly loses sight of its objective. It deduces that since the defendants here have an extensive list of products at their disposal, as did the defendant in Musser, then the defendants here should also be held immune from strict liability as was the defendant in Musser. This distortion of Musser could have frighteningly far-reaching implications.
I am gravely concerned that the majority‘s opinion will have an unwanted and adverse impact on our strict liability law. In an effort to reach its result in the area of medical services, the majority has failed to advance with caution. I agree with the majority that this area deserves “more examination than has yet been afforded this issue.” Maj. op. at 538. Unfortunately, such an examination has not been presented and I am, therefore, compelled to dissent.
MONTEMURO
Justice