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Parker v. St. Vincent Hospital5/30/1996
HARTZ, Judge.
{1} Plaintiffs Denise I. Parker (Denise) and her husband, Michael D. Parker, appeal from an order granting summary judgment in favor of St. Vincent Hospital (the Hospital). Their suit arose out of two operations performed on Denise at the Hospital by Dr. Terry Carlberg. In 1983 Dr. Carlberg implanted bilateral interpositional implants (IPIs) in Denise's temporomandibular joint. In 1986 he implanted bilateral artificial temporomandibular joint replacement devices (TJRs). The IPIs and TJRs were manufactured by Vitek, Inc., which had declared bankruptcy by the time Plaintiffs filed suit. The implants contained teflon manufactured by E.I. DuPont de Nemours & Company, Inc. (DuPont). Plaintiffs contend that teflon used in the implants abraded and caused granulomatous reactions, giant cell reactions, and bone erosion.
{2} Plaintiffs sued the Hospital and DuPont. The first amended complaint (the Complaint) contends that both implants were defectively designed because of the use of teflon. It alleges that the Hospital supplied the IPIs and TJRs to Dr. Carlberg for use in Denise and breached "a duty to investigate the safety of the Vitek implants before supplying said implants and allowing their use in the Hospital." The district court granted summary judgment to both defendants. We have previously affirmed the judgment in favor of .
{3} We now affirm the summary judgment in favor of the Hospital to the extent that it holds that the Hospital is not strictly liable to the Plaintiffs for any design defect in the implants. We reverse and remand, however, on the issue of whether the Hospital may be liable for negligence. Although the Hospital may have had a duty to investigate the safety of the implants and may have failed to exercise due care in performing that duty, we cannot determine on the record before us whether the Hospital had such a duty or whether it exercised due care. Because of our Disposition of these issues, we need not address the other issues raised by Plaintiffs' appeal.
STRICT PRODUCTS LIABILITY
{4} Our Supreme Court has recently reaffirmed the doctrine of strict products liability for defectively designed products. . Although the tortfeasor in Brooks was a manufacturer, liability also extends to others in the chain of distribution. Ordinarily, any entity engaged in the business of selling or otherwise distributing products is strictly liable for distributing a defective product. See ; Restatement (Third) of Torts: Products Liability ยง 1 (Tentative Draft No. 2, 1995) [hereinafter Tentative Draft No. 2].
{5} The Complaint alleges that the Hospital supplied both implants to Denise. But in response to the Hospital's motion for summary judgment, Plaintiffs produced no evidence that the Hospital was in the chain of distribution for the IPIs implanted in 1983. Thus, summary judgment on the claim of strict liability was appropriate with respect to the IPIs. As for the TJRs implanted in 1986, Plaintiffs produced evidence that the Hospital ordered the implants at Dr. Carlberg's request and billed for them at a markup.
{6} The claims regarding the TJRs present the most interesting and challenging issue raised by this appeal: whether a hospital should be strictly liable for supplying a defectively designed implant selected by the treating physician. We must address whether the Hospital should be treated as a distributor of the implant and, if so, whether there are sound policy reasons not to treat a hospital the same as other distributors for purposes of strict products liability.
{7} According to the weight of authority, a hospital is not a distributor of medical supplies, even though it may bil
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