Klaus v. Alameda-Contra Costa Medical Ass'n Blood Bank, Inc.

Opinion

BROWN (H. G), J.

Plaintiff appeals from a judgment dismissing his action based upon strict liability against a nonprofit blood bank for personal injury allegedly caused by the transfusion of blood infected with serum hepatitis. We conclude that the immunity from liability on this basis which was established by the Legislature in Health and Safety Code section 1606 must be applied to blood banks as it has already been applied to hospitals in

Shepard

v.

Alexian Brothers Hosp. (1973)

33 Cal.App.3d 606 [109 Cal.Rptr. 132].

[419]

California Health and Safety Code section 1606 states: “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 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.”

The effect of the statutory definition of a blood transfusion as a service is to preclude a cause of action on the basis of strict liability in tort for injuries arising from the transfusion of blood.

(Shepard

v.

Alexian Brothers Hosp., supra,

33 Cal.App.3d 606, 610.)

In

Shepard,

the reviewing court was asked to extend the doctrine of strict liability to services but refused to do so, indicating that the reasons underlying the imposition of such' liability did not apply to a hospital which is not engaged in the business of distributing blood to the public and does not put the blood as a product on the market in order to profit therefrom. Appellant points out that a blood bank, in contrast to a hospital, does put the blood on the market. Other policy considerations mentioned in