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Budding v. SSM Healthcare System5/30/2000
at sec. 538.225, requiring an affidavit of fault attributable to the defendant health care provider, applied to a hospital that sells or transfers a surgical implant to a patient but construed that section to require only an affidavit that the health care provider sold a defective product. Id. at 652-53. Bell, by its reliance on Sweeney, would eliminate the clear legislative requirement of an affidavit that a health care provider "failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances" and that such failure caused injury to the plaintiff. To accept an affidavit of a lower standard of care than negligence or a different cause of injury than the defendant health care provider's fault is to rewrite the statute, not construe it. Bell has been followed in Brandon v. Southeast Missouri Hospital, Inc., 926 S.W.2d 113 (Mo. App. 1996), and Pinkerton v. Southeast Missouri Hosp. Ass'n, 926 S.W.2d 137 (Mo. App. 1996).
More recently, Bell was taken a step further in Mulligan v. Truman Medical Ctr., 950 S.W.2d 576 (Mo. App. 1997). Like Bell, the Mulligan court would permit a strict liability case to proceed against a health care provider without the affidavit of fault mandated by sec. 538.225. In addition, the Mulligan court construed sec. 538.300 as intended to retain common law strict products liability against health care providers, even though such liability had been specifically rejected in the single Missouri case in which such claim was raised prior to enactment of sec. 538.300. To the extent Bell, Brandon, Pinkerton and Mulligan are inconsistent with the text and history of chapter 538, they are overruled.
The legislature has spoken with reasonable clarity expressing an intent to eliminate liability of health care providers for strict products liability. All canons of statutory construction are subordinate to the requirement that the Court ascertain and apply the statute in a manner consistent with that legislative intent. Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 19 (Mo. banc 1995). As the briefs of the parties point out, appealing public policy arguments can be made both for and against imposing strict liability where a health care provider transfers a defective product to a patient. However, when the legislature has spoken on the subject, the courts must defer to its determinations of public policy.
CONCLUSION
The Court concludes that because plaintiff did not make a submissible case against the Hospital based on negligently providing a defective implant, any error in the instruction on the subject is not prejudicial. The judgment of the trial court is affirmed.
Separate Opinion:
None
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