St. Mary Medical Center, Inc. (St. Mary) appeals the denial of its motion to dismiss, which was based on the contention that Esther Casko (Casko) did not comply with the statute of limitations for an action under the Indiana Medical Malpractice Act. We reverse.
On April 27, 1987, Samuel Casko received a pacemaker while a patient at St. Mary. As a result of an alleged failure in the pacemaker, Samuel Casko died on September 26, 1990.
Casko filed suit on December 21, 1992, against St. Mary and the various doctors involved in the care of Samuel Casko, alleging counts of breach of warranty, negligence, failure to inform and breach of contract. Casko also made a products liability claim against Biocontrol, d/b/a Biocontrol Technology, Inc., which allegedly manufactured, distributed and sold the pacemaker, and St. Mary, which allegedly distributed and sold the product. Through a stipulation of dismissal the claims involving medical malpractice were dismissed, but the court declined to dismiss the products liability claim on St. Mary's motion. The court certified its order for interlocutory appeal, which was accepted by this court on March 8, 1994.
In review of a motion to dismiss, the facts alleged in the complaint must be taken as true and only where it appears that under no set of facts could plaintiffs be granted relief is dismissal of the complaint appropriate. Brenner v. Powers (1992), Ind. App., 584 N.E.2d 569, 573.
The Indiana Products Liability Act provides that a seller who places any defective product unreasonably dangerous to any consumer into the stream of commerce is subject to liability if the consumer is in the class of persons that the seller should reasonably foresee as being subject to such harm, the seller is engaged in the business of selling such a product, and the product is expected to and does reach the consumer without substantial alteration of the condition in which it was sold. Ind. Code § 33-1-1.5-3(a). A "seller" is defined as "a person engaged in business as a manufacturer, a wholesaler, a retail dealer, a lessor, or a distributor. I.C. § 33-1-1.5-2. The term "product" means "any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product." Id. (emphasis added).
St. Mary argues that it is not a seller which is engaged in the business of selling pacemakers, but that it is in the business of providing professional medical services to its patients, including facilities, skilled personnel, and equipment. St. Mary maintains that the sale of various items necessary for a patient's treatment are merely incidental to the overall purpose of providing health care. Casko counters that "[w]hile it is true St. Mary does employ nursing staffs and other medical personnel who provide treatment to patients, the predominate activity is to sell goods and products to patients." (Brief of Appellee at 9). Casko argues that the medical services provided by a hospital, consisting primarily of the nursing staff, should be treated under the Medical Malpractice Act,
We cannot agree with Casko. It is the substance of a claim, not its caption, which determines whether compliance with the Medical Malpractice Act is necessary. Van Sice v. Sentany (1992), Ind. App., 595 N.E.2d 264, 266; Boruff v. Jesseph (1991), Ind. App., 576 N.E.2d 1297. While no Indiana cases have addressed the specific issue before us, we find guidance in Dove by Dove v. Ruff (1990), Ind. App., 558 N.E.2d 836, reh. denied, trans. denied, where the parents of a child who suffered a reaction to a drug brought a products liability suit against the physician who prepared and sold the medication. The court addressed the issue of whether the transaction came under the definition of a product within the Products Liability Act:
Id. at 838 (citations omitted) (emphasis added).
Upon review of case law from other jurisdictions addressing the issue before us, we conclude that this rationale applies with equal force to a hospital in the exercise of its primary function, to provide medical services. In Hector v. Cedars-Sinai Medical Center (1986), 180 Cal.App.3d 493, 225 Cal.Rptr. 595,
Id. 225 Cal. Rptr. at 601 (citation omitted). The position of the California court appears to be the accepted general rule. See also Hoff v. Zimmer, Inc. (1990), W.D.Wis., 746 F.Supp. 872 (interpreting Wisconsin law, district court would not hold hospital strictly liable when prosthesis failed); North Miami General Hospital, Inc. v. Goldberg (1988), Fla.App., 520 So.2d 650 (hospital not a business within product's distributive chain but is properly regarded as a consumer that employs the product in performing its actual function of providing medical services); Cutler v. General Elec. Co. (1967), N.Y.Sup., 4 U.C.C.Rep.Serv. 300, 1967 WL 8950 (breach of warranty action against hospital for defective pacemaker dismissed because primary engagement was treatment of the patient, not the business of selling surgical appliances); Annot., 54 A.L.R.3d 258 (1973).
Casko urges that, given the unique characteristics of our malpractice act, we should not be persuaded by authority from other jurisdictions. However, we discern no logical reason not to examine such authority, and note that the court in Dove relied on case law from other states in determining whether the
Casko alternatively relies upon several premises liability cases which concluded that a claim of ordinary negligence was not within the confines of the Medical Malpractice Act. However, unlike those cases, where the allegations of negligence were unrelated to a scheme of health care, the provision of a pacemaker is clearly a part of the overall medical services provided by the hospital. See Methodist Hospital of Indiana, Inc. v. Ray (1990), Ind. App., 551 N.E.2d 463, 466 (opinion adopted (1990), Ind., 558 N.E.2d 829). Samuel Casko entered St. Mary not merely to purchase a pacemaker, but to obtain a course of treatment which included the implantation of a pacemaker. This is supported by Casko's complaint, which alleged that the defendants, including St. Mary, "undertook to treat and provide health, medical, and surgical care, diagnosis and treatment to the Plaintiff, Samuel Casko." (R. 8). Casko attempts to argue two opposing contentions from the same set of facts: one, that St. Mary performed negligent medical services, and, two, that St. Mary is primarily a seller of goods and not a provider of medical services. Clearly, the essence of St. Mary's conduct in this case is not that of a seller of pacemakers but rather that of a provider of medical services. As such, it cannot be subject to strict liability for a defective product provided to a patient during the course of his or her treatment.
We similarly conclude that this case is governed by the Medical Malpractice Act. Under the Act, "malpractice" means "a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient." I.C. § 27-12-2-18. A "health care provider" is defined as "[a]n individual, a partnership, a limited liability company, a corporation, a professional corporation, a facility, or an institution licensed or legally authorized by this state to provide health care or professional services as a ... hospital... ." I.C. § 27-12-2-14. The Act applies to conduct, curative or salutary in nature, by a health care provider acting in his or her professional capacity, and is designed to exclude only conduct which is unrelated to the promotion of a patient's health or the provider's exercise of professional expertise, skill, or judgment. Id. (citations omitted). We conclude that Casko's action against St. Mary is controlled by the Medical Malpractice Act, as St. Mary was a health care provider performing medical services, and the trial court therefore erred in denying the motion to dismiss, as the action is time-barred by the two year statute of limitations. I.C. § 27-12-7-1(b); Babcock v. Lafayette Home Hosp. Women's Clinic (1992), Ind. App., 587 N.E.2d 1320.
STATON J., and RATLIFF, Sr. J., concur.