Robert O'Dell et al. v. Greenwich Healthcare Servces, Inc. et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (167.00)

I. Background

The defendants, Greenwich Healthcare Services, Inc., Greenwich Hospital and Yale New Haven Hospital, Inc. have moved for summary judgment dismissing the remaining counts in this action that are set forth in the plaintiffs' fourth revised complaint.   Dkt. Entry 156.00.¹  Therein, Robert O'Dell makes a product liability claim against each of the three defendants pursuant to General Statutes § 52–572m et. seq.  (Connecticut Products Liability Act) and his wife Ruth O'Dell pursues a loss of consortium claim against the same defendants.   The gist of the product liability claim against the defendants is that Robert O'Dell (O'Dell) was an admitted patient at Greenwich Hospital undergoing pain management therapy under the supervision of Dr. Sygall by means of injections of neuraxial medications.   After one of the injections O'Dell reacted with convulsion, an inability to feel his legs or breathe.   He was placed in intensive care and alleged to have incurred permanent damage to his nervous system, pain, nausea and fear of losing his life.   It is alleged that each of the defendants:  Yale New Haven Hospital (Yale New Haven) Greenwich Healthcare Services (Services) and Greenwich Hospital owned, managed, operated and controlled all of the activities of Greenwich Hospital and each was a purchaser and reseller of defective neuraxial medications prescribed by Dr. Sygall and formulated by Bryce RX laboratories, Inc., and therefore are liable to O'Dell pursuant to the provisions of the Connecticut Products Liability Act.²

The three defendants have moved to dismiss the product liability claims against them on the ground that not one of them was a “product seller”, as defined in Section 52–572m, and therefore both the product liability claim and the derivative loss of consortium claim must be dismissed.   The plaintiffs oppose the motion by a memorandum of law.

II. Scope of Review

Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751 (1985).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.   See generally Mott v. Wal–Mart Stores East L.P., 139 Conn.App. 618, 624–625 (2012).

III. Discussion

The summary judgment motion relies primarily on an affidavit by Glen Taylor, director of the pharmacy department at Greenwich Hospital, and a discussion of Connecticut cases dealing with the issue of who is a product seller under the Connecticut Products Liability Law.

The Taylor affidavit, which is Exhibit D to the summary judgment motion, describes, and partially explains the process of billing O'Dell and describes the role of the hospital pharmacy department in obtaining the neuraxial medication for O'Dell's treatment.   At the outset, Taylor states emphatically that Yale New Haven and Health Services rendered no services to O'Dell in connection with this medication.   Ex. D. ¶ 6.

The Taylor affidavit details the following facts.   Dr. Sygall, O'Dell's treating physician, completed a prescription for O'Dell of a compounded neuraxial medication and requested that Bryce Laboratories deliver the medication to the pharmacy systems manager at Greenwich Hospital the next day, February 17, 2009.   Ex. B. Bryce Laboratories delivered the medication at the time requested and billed the hospital $117.40.   Ex. C. The Greenwich Hospital provided a number of related services including verifying the laboratory as an appropriate source, reviewing the prescription against the patient's medical records and existing medication, properly labeling the medication including identifying and locating the patient and instructions as to time and manner of dispensing the medication.

The Taylor affidavit stated that Greenwich Hospital does not mix, formulate or manufacture neuraxial medications and did not do so when O'Dell was being treated, nor does or did the hospital do end product testing or confirmation of neuraxial medications.   Ex. D., ¶ 20–21.   A charge of $234.80 was put on O'Dell's hospital bill in Connecticut with the above.   Ex. A.

The court has reviewed numerous trial and appellate court decisions both submitted by the defendants and uncovered during the court's research.   No cases were submitted by the plaintiff.   In 1984 the Connecticut Supreme Court stated the following in Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399 (1984), a case involving a product liability claim by a former patient of the defendant hospital who received several blood transfusions while hospitalized, and allegedly contracted serum hepatitis:  “once a particular transaction is labeled a ‘service’, as opposed to the ‘sale’ of a ‘product’, it is outside the purview of our product liability statute.”  Id. 403.   Section 52–577m(a) defines a “product seller” as one “who is engaged in the business of selling such products whether the sale is for resale or for use or consumption.”   In Zichichi the Connecticut Supreme Court was materially influenced by the existence of a Connecticut law defining the sale of blood as not the sale of a commodity, but the provision of a medical service.   General Statutes § 19a–280 (repealed in 2010).

Following Zichichi there have been what appears to be a unanimous chorus of appellate and trial court decisions, either barring product liability claims against hospitals or defining “product” in a manner hospitable to hospitals.   In Truglio v. Hayes Construction Co., 66 Conn.App. 681, 684–685 (2001), the Appellate Court, looking to the drafting history of the legislature when enacting Section 52–577m(a) said that a party should be considered a “product seller” “where a sale of a product is a principal part of the transaction, and where the essence of the relationship between the buyer and the seller is not the furnishing of professional skill or services.”  (Emphasis in original.)   Subsequently, the Appellate Court has affirmed the grant of summary judgment to a defendant hospital which stocked certain hardware used in connection with orthopedic surgery on the plaintiff.  Zbras v. St. Vincent's Medical Center, 91 Conn.App. 289, cert. denied, 276 Conn. 910 (2005).

The trial court had concluded that the hospital was “not engaged in the business of selling equipment utilized in operative procedures, but rather engaged in the business of providing medical services.”   The Appellate Court echoed this language in describing the situation as one where a “defendant can bill for goods provided incidental to surgery without being in the business of selling goods.”  Id. 294.

On the Superior Court level, there are several decisions barring a product liability claim based on allegations that a device used in a hospital procedure was defective.   Lambert v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, CV 05 4002013 (November 2, 2006, Brunetti, J.) [42 Conn. L. Rptr. 333] (Surgical pedicel rod used in back operation);  Herrick v. Middlesex Hospital, Superior Court, judicial district of Middlesex, CV 03 0100932 (June 27, 2005, Silbert, J.) [39 Conn. L. Rptr. 624] (almost the same facts);  Ferguson v. EBI medical Systems, Superior Court, judicial district of New London, CV 527633 (August 1, 1995, Hurley, J.) [15 Conn. L. Rptr. 94] (wrist fixator used in wrist surgery).

More recently, in Zelle v. Bayer Corporation, et al., Superior Court, judicial district of Stamford at Stamford, complex litigation docket, X08 CV 094019435 (February 2, 2013, Brazzel–Massaro, J.), the court granted summary judgment in favor of Danbury Hospital dismissing a product liability claim involving the administration of a gadolinium-based agent, called Magnevist, used to provide greater contrast for magnetic resonance imaging (MRI).   Magnevist had a known risk of causing allergic reactions.   The plaintiff experienced such a reaction that resulted in respiratory arrest and shock, and filed the claim against the hospital.   The court relied on Zichichi, Zbras and Herrick and articulated a public policy argument that to find a hospital under these circumstances a product seller would have an extremely chilling effect on hospital operations.

On the subject of whether the hospital was a product seller, Judge Brazzel–Massaro wrote:  “there is no genuine issue of fact that the use of Magnevist was part of the service provided to patients that sought the medical assistance for a MRI. This is precisely what happened to Mrs. Zelle who came to the hospital in pain and needing the assistance in diagnosing the cause of her pain.   The hospital did everything possible to determine whether she was experiencing a life threatening stroke, and in order to do so, the MRI was the crucial service provided.”

In opposition to the motion, the plaintiffs make several arguments.   First, they contend that defendants' assertion that there is no material fact in dispute is without merit, because the plaintiffs have taken no discovery.   In support of this contention, the plaintiffs lay out almost a page and a half of questions they think should be asked of Glen Taylor.   Second, they argue that this case, where a very specific mix of ingredients was formulated for Mr. O'Dell's treatment, and allegedly botched, is quite a different scenario than those cases cited by plaintiffs involving ready-made medical devices such as rods, and that the issue of negligence still exists in this case despite the dismissal of the medical malpractice claim.   Finally, the plaintiffs' counsel makes a public policy argument in these affecting words:

“This medication was not an aspirin.   It was a case sensitive medication made for only one patient's usage, and it almost killed him.   Patients need the Court's protection for cases such as this, which easily distinguishable from the broader, generic cases cited by the Defendant.”

Plaintiffs' Memorandum of Law (Dkt. Entry 174.00) 11.

Turning to the plaintiffs' arguments first, the court is not persuaded that summary judgment should be denied because the plaintiffs have not done discovery.   There has been ample opportunity for discovery since this case was returned to court in March 2011.   To be sure, as plaintiffs note, they have been busy fending off motions to dismiss, but interrogatories and deposition notices may be served at any time after the lawsuit begins.  Practice Book §§ 13–6(a), 13–26.   A motion for summary judgment may be filed at “any time.”  Practice Book § 17–44.   The Practice Book also specifically provides for situations where a party believes more discovery is required, but the plaintiffs filed no affidavit to that effect, and did not avail themselves of Practice Book § 17–47.

Plaintiffs' contention that negligence may still be part of their claim is unavailing in the context of this motion.   The issue before the court is whether the defendants are “product sellers” and can they be sued under the products liability statute in Connecticut.   If they can be sued for product liability, negligence may be an issue, but not until the products liability act is found to be properly invoked.

The powerful policy statement in plaintiffs' memorandum would give pause to anyone, including this court.   But, there are countervailing policy arguments available to the defendants as well and such arguments have been articulated by Connecticut courts dismissing product liability claims against hospitals.   A number of years ago two respected law professors noted that

Hospitals, medical doctors, and other professionals who provide health care services have not generally been held strictly liable even when, in the course of rendering health care services, defective products are transmitted.   They are not regarded as the type of enterprises, akin to the producers of mass products, that can conveniently bear the costs of accidents attributable to defective things used or transmitted.   Moreover, the principal thing bargained for is not the product transmitted but the professional services of the defendant.

W. Prosser and W. Page Keeton, Prosser and Keeton on Torts, § 104 at 720 (5th ed.1984).   All or part of the above statement has been quoted, or noted, with approval in Herrick, Ferguson, and Krawiec v. Olympus Corporation of America, Superior Court judicial district of New Britain, CV 85 0420784 (June 15, 1988, Aronson, J.), cases which have granted summary judgment dismissing product liability claims asserted against hospitals because they are “not product sellers.”

The court determines that the delivery of the neuraxion medication to O'Dell was part of the medical services rendered by Greenwich Hospital for pain therapy under the supervision of Dr. Sygall.   The court finds there is no material fact at issue on this point.   There is no question that Mr. Sygall was treating O'Dell, and this treatment, as supported by the facilities of Greenwich Hospital, was a service under the overwhelming Connecticut case law.   The court further determines that the above conclusion is not affected by the possibility that Greenwich Hospital may have made a very small profit from charge on O'Dell's bill for pharmacy services.   See e.g. Herrick, Lambert.   The court also finds that while Taylor's affidavit is somewhat conclusory as to the role of Yale New Haven and Services, and the ownership status of the three defendants, as alleged, is intertwined, there is no evidence that Yale New Haven or Services played any role in supplying the neuraxial medicine to O'Dell.   Finally, the court finds no overwhelming policy reasons to impose liability on the defendants in this case, and even if it did, in light of the roles of the legislature and appellate courts in this state, a Superior Court is not an instrument of policy making.

IV. Conclusion

The defendants' summary judgment motion is granted.   The second count (directed at Yale New Haven) third count (directed at Health Services) and fourth count (directed at Greenwich Hospital) all of which are premised on product liability are dismissed as is the fifth count asserting a claim for loss of consortium on behalf of Ruth O'Dell, because that claim is dependent on the success of the product liability claims.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. A medical malpractice claim against the three defendants was previously dismissed in a 2011 decision by Judge Jennings..  FN1. A medical malpractice claim against the three defendants was previously dismissed in a 2011 decision by Judge Jennings.

FN2. The record reflects that a medical malpractice claim was withdrawn as to Dr. Sygall, and the court has been informed by the defendants' memorandum that a claim against Bryce Laboratories was settled..  FN2. The record reflects that a medical malpractice claim was withdrawn as to Dr. Sygall, and the court has been informed by the defendants' memorandum that a claim against Bryce Laboratories was settled.

Adams, Taggart D., J.T.R.