hospital's status as a seller, but on the negligent administration of hospital medical supplies. Although the hospital apparently knew that the morphine supply was contaminated, it did not remove the medicine from the supply room.
As both Volk and Perlmutter hold, plaintiff can maintain an action against Dr. Rish based on negligence. However, because his alleged negligence concerned his medical skill and judgment in performing services to a patient, not his sale of a defective product, that action would be for medical malpractice not product liability. Stander, at *3. Volk does not hold that a medical care provider may be sued for negligence based on a theory that it is a seller of a defective product, but because of negligence in the performance of a hospital administrative function. Here, because Dr. Rish primarily provided plaintiff medical services, under Perlmutter plaintiff may not maintain her failure to warn, negligence, breach of warranty, and strict products liability causes of action against Dr. Rish on the basis that he was a seller or distributor of a defective product.
Plaintiff next argues that because Dr. Rish mixed Dow Corning silicone with a second, unknown source of silicone, Dr. Rish can be sued in his status as a product manufacturer separate and distinct from a medical malpractice action. See Stander v. Orentreich, 627 N.Y.S.2d 879, 1995 N.Y. Misc. LEXIS 258, No. 7421/88, 1995 WL 352536, at *3 (N.Y. Sup. Ct. May 16, 1995). In Stander, a doctor, using his skills as a chemist, attempted chemically to reprocess nonmedical grade silicone, unacceptable for injection into humans, into medical grade silicone, but failed due to his negligence. Noting that plaintiff's cause of action based on negligence stemmed from the doctor's status as a chemist, not from the physician/patient relationship, the court sustained the plaintiff's negligence claim and found the action timely under the 1993 Revival Statute. Id. at *5.
On the facts of this case, we do not think that the Court of Appeals would uphold plaintiff's product-based causes of action on a theory that Dr. Rish was a manufacturer of a defective product. Even if the Court were to accept the reasoning of Stander, the instant case is readily distinguishable. In Stander, the doctor chemically altered the silicone before injecting it into the plaintiff. On the other hand, plaintiff herein has supplied no facts to support a contention that the silicone mixture was in any way chemically altered by Dr. Rish's mixing process; much less that the chemical alteration was the source of her injuries. Instead, she alleges generally that, at the time she underwent the augmentation procedure, silicone of any type was unfit for injection into humans for any purpose including breast enhancement, and that Dr. Rish did not inform her of that fact. Because plaintiff does not even allege, much less establish that the "mixing" led to her injuries, she has supplied an insufficient basis for a failure to warn, negligence, strict products liability, or breach of warranty cause of action based on Dr. Rish's status as a manufacturer of a defective product. Therefore, we must deny plaintiff's motion to reinstate these causes of action against defendant Rish.
Because the statute of limitations had run on plaintiff's fraud claim prior to her initiating suit against Dr. Rish in 1992, and the 1993 Revival Act does not revive that cause of action, Dr. Rish's motion for summary judgment is granted. Plaintiff's cross-motion to reinstate her negligence, failure to warn, strict products liability, and breach of warranty causes of action is denied.
July 7, 1995
New York, New York
William C. Conner
Sr. United States District Judge