Opinion
No. CV-05-4002013-S
November 2, 2006.
MEMORANDUM OF DECISION
On March 29, 2005, the plaintiff filed a one-count complaint against the defendant alleging that the defendant, Charlotte Hungerford Hospital, is liable to the plaintiff for personal injuries she allegedly sustained pursuant to the Connecticut Products Liability Act (CPLA), Connecticut General Statutes § § 52-572m through 52-572r. The complaint alleges that the surgical products used in the plaintiff's back fusion operation, namely, some pedicel rods, were defective and that the defendant was engaged in the business of selling products for use in medical procedures and surgeries.
On May 10, 2005, the defendant filed a motion for summary judgment with the required supporting affidavits. The defendant's argument is that the defendant is not a product seller as defined by the CPLA, but that it only provided services, and thus, is not liable under the CPLA. On July 17, 2006, the defendant filed a supplemental memorandum of law citing the recent Appellate Court decision in Zbras v. St. Vincent's Medical Center, 91 Conn.App. 289, 294, cert. denied, 276 Conn. 910 (2005), supporting this position. The plaintiff filed an objection thereto on September 27, 2006 to which the defendant filed a reply on September 29, 2006. The court heard argument on October 30, 2006.
The issue here is the following: when a hospital bills for surgical supplies used by a surgeon, is the hospital a "product seller" or is the hospital just providing a service? The defendant in its attached memorandum cites several superior court decisions which have held uniformly that a hospital "is not a product seller pursuant to the CPLA, but is rather engaged in providing a medical service." Wallace v. Gerard Medical, Inc., Superior Court, Judicial District of New Haven CV-00027660-S, 34 Conn. L. Rptr. 464 (April 7, 2003) (Wiese, J.). The defendant's position is that the Appellate Court's decision in Zbras has finally put this issue to rest. In Zbras, a case similar to the present case concerning defective hardware used in surgery, the court stated, "That claim evinces both a lack of understanding of the law and a mischaracterization of the facts. The defendant can bill for goods provided incidental to surgery without being in the business of selling goods. Once a particular transaction is labeled a 'service,' as opposed to a sale of a product, it is outside the purview of our products liability statute." Zichivhi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987).
The plaintiff's counter-arguments are 1) that the Appellate Court's holding in Zbras is not controlling because it is dictum and not the true holding of the case, and that the issue in Zbras was the trial court's reliance on the affidavits, not on the seller of a product versus service issue as we have here, and 2) there is a genuine issue of material fact as to whether the hospital is a "seller of a product" when it charges a premium for the product over and above its actual cost. The evidence in this case is that the hospital billed the plaintiff's insurance company a little less than double the actual cost of the surgical hardware.
As to the plaintiff's first argument, the court finds that Zbras is controlling. The court finds that when a hospital provides the surgeon with hardware to perform a surgical procedure, it is performing a service and not selling a product. As to the second argument the court agrees with the reasoning of Silbert, J. in Herrick v. Middlesex Hospital et al., CV 03-30100932, Superior Court, Judicial District of Middlesex, July 27, 2005, ( 39 Conn. L. Rptr. 624) that the mere fact that the hospital appears to have made a substantial profit on the hardware does not make it a product seller.
Pursuant to Connecticut Practice Book Section 17-49, 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 that the moving party is entitled to judgment as a matter of law." A material fact is one that will make a difference in the outcome of the case. Yanow v. Teal Industries, Inc., 178 Conn. 262, 268 (1979). Summary judgment should be granted if the "moving party would be entitled to a directed verdict on the same facts." Wilson v. New Haven, 213 Conn. 277, 279-80 (1989). "The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Id. at 279.
"The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitled [that party] to a judgment as a matter of law." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994). "Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213, 217 (1994). "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court." Bartha v. Waterbury House Wrecking Co., Inc., 190 Conn. 8, 12 (1983).
The court in this case finds that there is no genuine issue of material fact, that Charlotte Hungerford Hospital is not a product seller within the meaning of the Connecticut Products Liability Act, and therefore, the hospital's motion for summary judgment is granted.