Cramer v. Queen of Angels Hospital

Opinion

FILES, P. J.

Plaintiff Joe B. Cramer appeals from the judgment entered following the grant of a motion for nonsuit in favor of defendant Queen of Angels Hospital. In his complaint, plaintiff alleged that he contracted serum hepatitis by reason of a blood transfusion administered to him while he was a patient in respondent hospital. Prior to trial, he elected to proceed on the theories of strict liability in tort and breach of express and implied warranties only.

Health and Safety Code section 1606 provides as follows: “The procurement, processing, distribution, or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing the same, or any of them, into the human body shall be construed to be, and is declared to be, for all purposes whatsoever, the rendition of a service by each and every person, firm, or corporation

[815]

participating therein, and shall not be construed to be, and is declared not to be, a sale of such whole blood, plasma, blood products, or blood derivatives, for any purpose or purposes whatsoever.”

In

Shepard

v.

Alexian Brothers Hosp.

(1973) 33 Cal.App.3d 606 [109 Cal.Rptr. 132], the court determined, by reason of that statute and its underlying rationale, that a hospital which administered a blood transfusion could not be held liable under the doctrine of strict liability in tort or for breach of warranty. That decision is controlling here.

Plaintiff contends that Health and Safety Code section 1606 is unconstitutional in that it creates a denial of the equal protection of the law for “the victims of contaminated blood transfusions, who unlike all other tort victims of defective products do not have the doctrine of strict liability in their legal arsenal.”

California courts follow the United States Supreme Court in employing a two-level test for measuring legislative classifications against the equal protection clause. “ ‘ “In the area of economic regulation, the high court has exercised restraint, investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. [Citations.] [If] On the other hand, in cases involving ‘suspect classifications’ or touching on ‘fundamental interests,’ . . . the court has adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny. [Citations.] Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a