The opinion of the court was delivered by: LORD
Plaintiff claims that her husband died as a result of exposure in 1956 to the substance Thorotrast, a form of thorium dioxide, with which he was injected during a diagnostic medical procedure called a cerebral arteriography.
She alleges Thorotrast is an inherently unsafe product and that defendants knew or should have known that it is so. Defendant Thomas Jefferson University Hospital ("Hospital") moves to dismiss several paragraphs of the complaint, pursuant to Fed.R.Civ.P. 12(b)(6).
In reviewing the sufficiency of the complaint, I am mindful that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
The Hospital asks that I dismiss three sub-paragraphs within para. 67 of the complaint, which begins:
[the Hospital] was jointly and/or severally negligent and grossly reckless in permitting its staff, associates, and personnel to use its equipment and products, including Thorotrast, for the purpose of performing a cerebral arteriography procedure, and in not monitoring its Thorotrast patients thereafter. Said negligent, careless and reckless conduct under the above alleged circumstances consisted of any and all of the following: . . .
The first challenged sub-paragraph is (a), which states:
failing to undertake or support research to find a remedy or palliative procedure for the conditions, symptoms or untoward effects caused by Thorotrast . . .
The Hospital argues that under Pennsylvania law, and moreover the law of any other state, a hospital has no duty to undertake or support research.
Plaintiff cites Schwartz v. U.S., 230 F. Supp. 536, 540 (E.D.Pa. 1964), in which the court held that once the government learned, or should have learned, that the thorium dioxide its physician had given years earlier to a patient was dangerous, the government had a duty to find the patient and warn him of the danger. Such a duty to warn may exist, if a warning would do any good. But para. 67(a) does not speak of giving warning, it speaks of undertaking or supporting research, which obviously would be a much more burdensome duty and one which, for all that one knows from the complaint, would have proven fruitless. Likewise, the illustrations to § 321 of the Restatement (Second) of Torts, which plaintiff also cites, demonstrate that a duty to warn may exist in a case like hers, but say nothing of a duty to undertake or support research. I will grant the Hospital's motion to dismiss para. 67(a).
The Hospital next challenges para. 67(f) and para. 67(s):
(f) failing to warn plaintiff's decedent or his family of the dangerous propensities, risks and consequences of the administration of Thorotrast; . . .
(s) failing to require and/or obtain a proper informed consent from plaintiff's decedent prior to the use or administration of Thorotrast on [him].
The Hospital argues that, when the physician is not an employee of the hospital, the duty to warn and the duty to obtain the informed consent of a patient are imposed upon the physician and not upon the hospital.
The Hospital also argues, with respect to para. 67(s), that the duty to obtain informed consent does not extend to the administration of a drug or a contrast medium like Thorotrast, being instead limited to surgery. If this premise is correct, then neither the Hospital nor the physician could be liable for not informing the ...