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Budding v. SSM Healthcare System5/30/2000
artments, 961 S.W.2d 50 (Mo. banc 1998). It would be an obvious absurdity to require an affidavit of negligence as a condition of proceeding with the cause of action even though negligence need not be proved in order to submit the case to a jury or to obtain a judgment. On that basis alone, it is reasonable to conclude that the legislature intended to eliminate liability of health care providers for strict liability.
Further buttressing the conclusion that strict liability is not applicable to health care providers is sec. 538.300. That section provides that the provisions of sec. 537.760 to sec. 537.765, relating to products liability actions, are not applicable to actions against health care providers. Section 537.760 codifies sec. 402A of the Restatement (Second) of Torts. Rodriguez v. Suzuki Motor Co., 996 S.W.2d 47, 65 (Mo. banc 1999). The exception of health care providers from the provisions codifying strict products liability is yet another clear indication that the general assembly intended to abrogate such liability for health care providers. Just as enactment of sec. 537.760 codified strict products liability, the exception provided for in sec. 538.300 was intended to eliminate such statutory liability for health care providers.
Perhaps the best explanation for the statutory silence regarding strict liability for providing a defective medical device is found in the state of the common law regarding products liability claims against health care providers in this state prior to the enactment of chapter 538 in 1986. At that time, the only case in which the courts of this state had considered strict liability against a health care provider was that of Hershley v. Brown, 655 S.W.2d 671 (Mo. App. 1983). There the court of appeals held that products liability was not applicable to a physician who implanted a medical device in a patient. Id. at 675. It found persuasive a Wisconsin case refusing to impose strict liability upon a surgeon for injuries arising from a lung biopsy. Hoven v. Kelble, 256 N.W.2d 379 (Wis. 1977). In addition, the court cited a California case holding strict liability inapplicable to a physician for injuries resulting from a prescribed medication. Carmichael v. Reitz, 95 Cal. Rptr. 381, 17 Cal. App.3d 958 (1971). Relying on Carmichael, the California courts that same year considered whether products liability was applicable to a hospital in Silverhart v. Mount Zion Hosp., 98 Cal. Rptr. 187, 20 Cal. App.3d 1022 (1971). In that case, the court refused to extend products liability to a hospital for injuries caused by a broken surgical needle. Against that backdrop, the only additional safeguards to assure against strict products liability claims were the requirements of an affidavit of negligence and to make clear that the codification of strict liability for defective products was inapplicable to health care providers. Thus, the general assembly intended that liability of health care providers be rooted in a culpable state of mind that gives rise to traditional tort liability and not in strict liability relating to the transfer of products under the Restatement (Second) of Torts sec. 402A, as codified in sec. 537.760.
The Court is mindful that since adoption of chapter 538, a number of cases have been decided by the court of appeals of this state allowing a plaintiff to bring a strict products liability action against a hospital where the hospital transferred a defective medical device to a patient. In Bell v. Poplar Bluff Physicians Group, 879 S.W.2d 618 (Mo. App. 1994), the court adopted the reasoning of the dissent in State ex rel. American Medical Int'l, Inc. v. Sweeney, 845 S.W.2d 648 (Mo. App. 1992) (Maus, J., dissenting). The dissent in Sweeney agreed th
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