Exam Proc 5810

1. Discuss whether Article 2 applies to a blood transfusion given during an operation. Assume for the purposes of this question that the patient will have to pay for the blood supply.

The primary issue is whether the administration of a blood transfusion constitutes a "sale of goods" under relevant Code sections." The relevance of this issue becomes obvious when it is noted that

Code warranty provisions specifically apply where there has been a "sale of goods.

Perlmutter v. Beth David Hosp.' 3 is the leading pre-Code case dealing with the issue of whether a blood transfusion constitutes a "sale of goods." The facts of the case are typical: A patient was given a blood transfusion as ordered by a doctor. The blood apparently contained serum hepatitis virus

which caused the patient to develop homologous serum hepatitis. The patient sued the hospital for breach of an implied warranty in that she was given "bad" blood.14 The court refused to impose liability on a warranty theory. It found that the predominant aspect of the patient-hospital contract was for the service of restoring the patient's health" and that the transfusion of blood was only an incidental transfer of property made in the course of performing the service.

The Court of Appeals, in reversing,2 held that the supplying

of blood for a price by a hospital is not a sale but merely an incident

of an entire contract for services to which implied warranties do not

attach. Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d

792 (1954).

In order for there to be an implied warranty under Section 96

of the Sales Act, there must be a contract of sale.3 However, when the rendition of a service includes a transfer of property, a difficult

question arises as to whether the transaction is a sale or a service.

In certain instances, the question has been answered with some certainty

in New York. For example, when the applicability of the

Statute of Frauds is in issue,...