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decided: April 7, 1989.


Appeal from the Order entered December 14, 1987 in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD83-10559.


James A. Villanova, Pittsburgh, for appellant.

Robert J. Marino, Pittsburgh, for appellee.

Rowley, Del Sole and Montgomery, JJ. Rowley, J., concurs.

Author: Del Sole

[ 384 Pa. Super. Page 405]

Today we are asked to consider whether a hospital may be liable to a patient under a theory of strict liability for injury which results when a medical instrument breaks during surgery. Since we conclude that the hospital was not in the business of selling or supplying the instrument in question, but was providing professional services to Appellant, we decline to find the hospital strictly liable.

Appellant, Dennis Podrat, underwent back surgery at Presbyterian University Hospital, (the Hospital) for a herniated lumbar disc. During the course of this surgery, the tip of a pituitary forcep being used by the attending physician broke off and lodged within the disc space. The broken tip of the forcep was later removed and the surgical instrument was discarded. Mr. Podrat and his wife filed suit against the Hospital and Codman-Shurtleff, Inc., the company they alleged manufactured the instrument. Appellants' claim

[ 384 Pa. Super. Page 406]

    was based upon theories of negligence, strict liability and breach of warranty. At the close of Appellants' case the trial court granted a non-suit as to both defendants. It found that Appellants failed to present any evidence that the instrument in question was manufactured by Codman-Shurtleff, Inc. It further rejected the sole claim presented to the trial court in Appellants' post-trial brief, that the hospital should be held strictly liable as a supplier of medical instruments.

The rule of strict liability found in § 402A of the Restatement of Torts (2d) provides that anyone who sells a defective product unreasonably dangerous to the user or consumer is liable for injury to such person if the seller is engaged in the business of selling such products, and the product reaches the user without a substantial change in its condition. This rule was adopted in Pennsylvania by our Supreme Court in the case of Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). The appellate courts of this Commonwealth have only once considered the application of strict liability to a hospital under circumstances similar to those found in the instant case. In Grubb v. Albert Einstein Medical Center, 255 Pa. Super. 381, 387 A.2d 480 (1978), the court was asked to review the applicability of strict liability to a hospital when the guard of a drill slipped causing the drill to penetrate further than anticipated during surgery to a vertebrae. In a per curiam Opinion it was acknowledged that strict liability does not turn on the technical existence of a sale and it would be a "reasonable extrapolation from the already expanding interpretation of 402A" to apply strict liability. Id., 255 Pa. Superior Ct. at 401, 387 A.2d at 490. However, this Opinion did not command the vote of a majority of the judges. Six judges participated in the decision of the case. Two judges concurred in the result but would not hold the hospital liable on strict liability. Another two judges dissented and found error in charging the jury that the hospital could be liable under § 402A. A fifth judge also dissented as to the liability of the hospital and listed as a reason the erroneous instruction on strict liability when strict liability was not pleaded. Since the

[ 384 Pa. Super. Page 407]

    opinion in support of holding the hospital strictly liable was not joined by a majority of the participating judges it is not precedential. Askew by Askew v. Zeller, 361 Pa. Super. 35, 521 A.2d 459 (1987). The Grubb decision, if anything, reveals that a majority of the court believed that the hospital should not be found strictly liable.

Fortunately other jurisdictions have been asked to examine this issue and their decisions provide us with guidance. In Silverhart v. Mount Zion Hospital, 20 Cal.App.3d 1022, 98 Cal.Rptr. 187 (1971), the court considered the applicability of strict liability to a situation where a surgical needle broke during an operation and became permanently lodged in the patient's body. As in Grubb, the court remarked upon the expansion of the doctrine to those aside from manufacturers who participate in the chain of distribution. In those cases the Silverhart court observed a common element; the defendants had each played a vital part in the overall production or marketing of the product. Although the plaintiff sought to establish that strict liability should apply to the ...

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