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Journal of Legal Medicine Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/ulgm20

Negligence liability for transfusion‐associated aids transmission David Stevens

a

a

Second‐year law student , Southern Illinois University School of Law , Lesar Law Building, Carbondale, Illinois, 62901 Published online: 23 Jul 2009.

To cite this article: David Stevens (1991) Negligence liability for transfusion‐associated aids transmission, Journal of Legal Medicine, 12:2, 221-241, DOI: 10.1080/01947649109510852 To link to this article: http://dx.doi.org/10.1080/01947649109510852

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Commentary

The Commentary section in the Journal of Legal Medicine presents, on a regular basis, articles written by students at Southern Illinois University School of Law, Carbondale, Illinois. This feature, initiated in 1981, is designed to allow outstanding law students who have special interests in law and medicine to pursue those interests through scholarly research and publication, thereby providing readers with high-quality and timely legal commentary. The following members of the Board of Editors of Southern Illinois University Law Journal have provided editorial review for this Commentary section: Deanne L. Fortna Editor in Chief William L. Hutton Student Articles Editor W. Eugene Basanta Thomas B. McAffee Faculty Advisors Vicki Genovese Secretary

The Journal of Legal Medicine, 12:221-241 Copyright © 1991 by Hemisphere Publishing Corporation

NEGLIGENCE LIABILITY FOR TRANSFUSION-ASSOCIATED AIDS TRANSMISSION AN UPDATE AND PROPOSAL

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David Stevens*

INTRODUCTION Acquired Immunodeficiency Syndrome (AIDS) was unknown in 1980,' as was the Human Immunodeficiency Virus (HIV), which causes AIDS and the AIDS-Related Complex (ARC). A short 10 years later it is in all of our minds, the Black Plague of the 20th century. There have been more than 139,000 diagnosed cases of AIDS in the United States alone,2 reaching into every state and virtually every county, with perhaps 500,000 cases of ARC3 and over 1,000,000 HIV infections.4 More than 87,500 AIDS deaths have been reported,5 over 1,300 of them children.6 The Public Health Service projects that by the end of 1993, the cumulative number of diagnosed AIDS cases will total 390,000 to 480,000/ with cumulative deaths totaling between 285,000 and 340,000.8 The numbers are growing monthly, and

* Second-year law student at Southern Illinois University School of Law. Address correspondence to Mr. Stevens at Southern Illinois University School of Law, Lesar Law Building, Carbondale, Illinois 62901. 1 The first cases, involving Kaposi's sarcoma and a type of pneumonia caused by the protozoan pneumocystis carinii, were reported in the medical literature in June of 1981. See 30 MORBIDITY & MORTALITY WEEKLY REP. 250-52 (June 5, 1981). 2

CENTERS FOR DISEASE CONTROL, HIV/AIDS SURVEILLANCE REPORT 5 (Aug. 1990).

3

It has been estimated that there are five to 10 cases of ARC for every case of full-blown AIDS. See Allen, Epidemiology of Acquired Immune Deficiency Syndrome and Infection Human TLymphotropic Virus/Lymphadenopathy Associated Virus (HTLV-III/LAV), in AIDS: LEGAL ASPECTS OF A MEDICAL CRISIS 3, 6 (1986).

4

Monthly AIDS Statistics from the Centers for Disease Control, 1990 Business Wire, Aug. 20, 1990. 5 CDC, supra note 2, at 13. 6 Id. 7 See supra note 4 and accompanying text.

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while there is some encouraging news about experimental treatments9 and potential vaccines,10 AIDS remains incurable and terminal. In December of 1982, the Centers for Disease Control (CDC) in Atlanta reported a case of "Possible Transfusion-Associated AIDS— California."11 On January 13, 1983, the American Red Cross, the American Association of Blood Banks, and the Council of Community Blood Centers, with FDA approval, published their Joint Statement on AIDS Related to Transfusion.12 They noted that the "possibility of blood-borne spread (of AIDS), still unproven, has been raised," and suggested that given "the possibility that AIDS may be spread by transfusion, we are obligated to respond with measures that seem reasonable at present."13 Two months later the FDA adopted these suggestions in its own guidelines,14 and by the summer of 1983, most blood centers had developed new donor screening procedures based upon the Joint Statement. The following year, the medical community finally reached a consensus on the transmission of AIDS through blood transfusions,15 and in the same year the causative agent for AIDS, HIV (at the time called HTLV-m/LAV), was isolated.16 Health care professionals are directly involved in the fight against AIDS. In addition to their medical battle against the disease, they also face a legal battle of unprecedented proportions, at times from the very patients they attempt to serve. The American National Red Cross, its regional and local affiliates, and independent local blood banks also have been fighting on two fronts: against the disease and its spread on one hand and against lawsuits brought by persons who contracted AIDS through blood transfu9

Zidovudine (also azidothymidine, or AZT) has been available for several years, and the FDA has recently approved other drugs for experimental use under streamlined testing and paperwork requirements. See G. ANNAS, FAITH (HEALING), HOPE, AND CHARITY AT THE FDA: THE POLITICS OF AIDS DRUG TRIALS, AIDS AND THE HEALTH CARE SYSTEM 183, 190 (1990).

10

It is hoped that at least one potential vaccine will be ready for human subject testing in 1990. See Koff & Hoth, Development and Testing of AIDS Vaccines, 241 SCIENCE 426 (1988).

11

31 MORBIDITY & MORTALITY WEEKLY REP. 652-54 (Dec. 10, 1982).

12

See Kozup v. Georgetown University, 663 F. Supp. 1048, 1052 (D.D.C. 1987). Labinsky, Are Blood Banks Liable to Patients Who Contract AIDS?, 8 BUSINESS J. 23 (Jan. 25, 1988).

13

14

FDA, RECOMMENDATIONS TO DECREASE THE RISK OF TRANSMITTING ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS) FROM BLOOD DONORS (Mar. 24, 1983); FDA, RECOMMENDATIONS TO DECREASE THE RISK OF TRANSMITTING ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS) FROM PLASMA DO-

NORS (Mar. 24, 1983). 15

Comment, Hospital and Blood Bank Liability to Patients Who Contract AIDS Through Blood Transfusions, 23 SAN DIEGO L. REV. 875, 877-78 (1986) (citing Curran, Lawrence, et al., Acquired Immune Deficiency Syndrome (AIDS) Associated with Transfusions, 310 NEW ENG. J. MED. 69, 70 nn.5 & 10 (1984); AIDS Transmission Via Transfusion Therapy, 8368 LANCET 102 n.10 (Jan. 14, 1984)). 16 Id. at 879 (citing Fischinger, Acquired Immune Deficiency Syndrome: The Causative Agent and the Evolving Perspective, 9 CURRENT PROBLEMS IN CANCER 4, 19 nn.3 & 19 (1985); Perspectives on the Future of AIDS, 253 J.A.M.A. 247 n.20 (1985)).

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sions on the other. Because of the lengthy incubation period of HIV,17 it was only recently that cases began to come to trial involving negligence in the transmission of AIDS through blood transfusions. Most of these cases date from transfusions that occurred before March 2, 1985, when the enzyme-linked immunosorbent assay (ELISA) screening test for HIV antibodies was licensed by the FDA and began to be routinely used to screen blood donors.18 It was estimated by CDC that 29,000 transfusion recipients between 1978 and 1984 received blood infected with HIV, and that 12,000 of them were still alive in 1987.19 Additionally, there are several cases that date to the very week, and in some cases the very day, that the ELISA test kits were delivered. There are potentially thousands of persons who have contracted AIDS, ARC, or who are HIV positive as the result of a blood transfusion. Many of these transfusion recipients could allege negligence for their present condition. While there is no shortage of AIDS material in the legal literature,20 the problem of negligence liability for transfusion-associated (T-A) AIDS transmission is an area of law that is rapidly developing. In recent years, several law journal articles, notes, and comments have discussed the subject,21 each providing valuable information and interesting speculation. Since the time of these publications, however, several of the estimated 300

17

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The incubation period is thought to be at least five years; there are cases of asymptomatic individuals nine years after exposure and five years after HIV positive testing. 50 Fed. Reg. 9909 (1985). The ELISA test is better than 9 8 % effective in detecting the HIV antibodies that indicate exposure to AIDS, and when coupled with the "Western Blot" test the rate for detection of AIDS exposure rises to 100%. Kozup v. Georgetown University, 663 F. Supp. 1048, 1053 ( D . D . C . 1987). The ELISA test has been criticized for generating a large number of false positives, but it was designed to be overinclusive rather than underinclusive. Peterman, Lui, Lawrence, & Allen, Estimating the Risks of Transfusion-Associated Acquired Immune Deficiency Syndrome and Human Immunodeficiency Virus Infection, 27 TRANSFUSION 371 (1987). C D C recorded a total of 3,589 AIDS cases where the virus was transmitted via transfusion as of August 1990. See C D C , supra note 2 , at 8. See, e.g., Brandt, Health Care Workers and AIDS, 48 M D . L. REV. 1 (1989); Hermann, AIDS: Malpractice and Transmission Liability, 58 U. COLO. L. REV. 63 (1986-87); Jacobs, AIDS: A Selective Bibliography of Legal, Social, and Medical Aspects, Update 4, 45 R E C . A . B . CITY N.Y. 152 (Jan.-Feb. 1990); Silverstein, Halpern, Dean, & Palmer, Confronting the Medical-Legal Issues of AIDS, 10 WHITTIER L. REV. 401 (1988); Tegtmeier, Ethics and AIDS: A Summary of the Law and a Critical Analysis of the Individual Physician's Ethical Duty to Treat, 16 A M . J.L. & MED. 249 (1990); Note, Between a Rock and Hard Place: AIDS and the Conflicting Physician's Duties of Preventing Disease Transmission and Safeguarding Confidentiality, 76 G E O . L.J. 169 (1987). See AIDS Symposium, 9-10 J. LEGAL M E D . (1988-89). The LegalTrac Database lists dozens of articles, notes, and comments under the heading AIDS (DISEASE). Hall, Bad Blood: Blood Industry's Immunity from Liability for Transfusion-Borne Disease, 12 J. PROD. LIAB. 25 (1989); Janowitz, Safety of the Blood Supply: Liability for Transfusion-Associated AIDS, 9 J. LEGAL M E D . 611 (1988); Lehman, Blood Suppliers' Liability for AIDS Contaminated Blood, 41 S.C.L. REV. 107 (1989). See also Jenner, Transfusion-Associated AIDS Cases, 26 TRIAL 30 (1990); Lipton, Blood Donor Services and Liability Issues Relating to Acquired Immune Deficiency Syndrome, 7 J. LEGAL M E D . 131 (1986); Williams, Blood Transfusions and AIDS: A Legal

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T-A AIDS cases in the courts have begun to work their way through the judicial system.22 What was previously only theoretical has become eminently practical. Although in 1986 it was said that negligence actions in TA AIDS cases "are generally unsuccessful against blood banks"23 and that "blood donor service reaction to the AIDS crisis was at all times responsible and responsive to the twin goals of preserving both the safety and the adequacy of the blood supply,"24 times have changed significantly. This comment examines the problem of negligence liability for T-A AIDS transmission from several perspectives. Section I considers a few of the most recent cases and the legal theories that have been used successfully by plaintiffs. Section n presents three recent problems that have developed in T-A AIDS litigation that may have to be resolved by the Supreme Court. Finally, Section HI suggests a financial proposal that could be implemented to compensate persons with T-A AIDS and minimize liability litigation. I. T-A AIDS IN THE CASE LAW During the 1980s, 11 reported cases25 and at least one unreported case dealing with T-A AIDS were decided by various federal courts. The 26

Perspective, 32 M E D . TRIAL T E C H . Q . 267 (1986); Comment, supra note 15, at 8 7 5 ; Comment, Transfusion-Associated Acquired Immunodeficiency Syndrome (AIDS): Blood Bank Liability?, 16 U. BALT. L. REV. 81 (1986) (authored by David A . Roling); Note, Liability for Post-Transfusion AIDS: An Analysis and Proposal, 2 J . L . & HEALTH 215 (1987-88) (authored by Lawrence K. English). 22

McGraw, Some AIDS Victims Win Blood Cases, L . A . Times, Sept. 16, 1990, Pt. A , at 1, col. 3 . McGraw also cites unnamed "legal experts, w h o expect thousands of cases t o clog the courts in the next few years as more people discover that they were given tainted blood during the early years of the AIDS epidemic." Id. at 1, col. 3 . See also Marcotte, Record AIDS Verdict: Woman Who Received Infected Blood Wins $12 Million, 76 A.B.A.J. 26 (June 1990) (estimating only 20 to 30 such cases).

23

Comment, supra note 2 1 , at 115.

24

Lipton, supra note 2 1 , at 186. Cutler v . Graduate H o s p . , 717 F. Supp. 338 ( E . D . P a . 1989); Kirkendall v. Harbor I n s . C o . , 698 F. Supp. 768 ( W . D . A r k . 1988), aff'd, 887 F.2d 857 (8th Cir. 1989); Poole v. Alpha Therapeutic C o r p . , 698 F. Supp. 1367 ( N . D . Ill. 1988); D o e v . Travenol Laboratories, 698 F. Supp. 7 8 0 ( D . Minn. 1988); D o e v . Cutter Laboratories, 7 0 3 F. Supp. 5 7 3 ( N . D . Tex. 1988); Shelby v . St. Luke's Episcopal H o s p . , N o s . H-86-3780, H-87-901 ( S . D . Tex. Mar. 17, 1988) (Lexis, Genfed library, Dist file); Kozup v . Georgetown Univ., 6 6 3 F. Supp. 1048 ( D . D . C . 1987), aff'd in part and vacated in part, 851 F . 2 d 4 3 7 ( D . C . Cir. 1988), aff'd after remand, 906 F.2d 783 (D.C. Cir. 1990); Jones v. Miles Laboratories, Inc., 705 F. Supp. 561 (N.D. Ga. 1987); McKee v. Miles Laboratories, Inc., 675 F. Supp. 1060 (E.D. Ky. 1987), aff'd, 866 F.2d 219 (6th Cir. 1989); Doe v. Miles Laboratories, 675 F. Supp. 1466 (D. Md. 1987); Coffee v. Cutter Biological, Civil No. B-85-194 (D. Conn. May 2, 1986) (Lexis, Genfed library, Dist file), aff'd, 809 F.2d 191 (2d Cir. 1987).

25

26

Fisher, Valley Blood Bank Exonerated in Case of AIDS-Tainted Blood, 8 BUSINESS J. 1 (July 11, 1988) (reports the results of a case between Quintana and United Blood Services of Arizona; the case was heard in the Federal District Court for the District of Colorado).

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plaintiffs based their claims on warranty violations, product liability, and strict liability causes of action. In all but one case these claims were barred, usually on statutory "blood shield" grounds.27 In the single case where strict liability was not barred, Doe v. Miles Laboratories™ the United States District Court for the District of Maryland withdrew the decision and certified the question to the Court of Appeals of Maryland, which precluded recovery by declaring blood products unavoidably unsafe in Miles Laboratories, Inc. v. Doe.29 While warranty violation, product liability, and strict liability causes of action were dismissed, negligence counts generally were preserved. In only one of these early cases, however, did a jury find for the plaintiff, and there the court entered judgment notwithstanding the verdict for the defendant.30 At the July 1990 annual meeting of the Association of Trial Lawyers of America, an entire day was devoted to the subject of negligence liability 27

All states except New Jersey have adopted some sort of "blood shield" statute, usually enacted before the AIDS epidemic and stemming from potential liability for transmission of hepatitis through blood transfusions. Blood shield statutes protect blood suppliers from product liability, strict liability, and implied warranty causes of action by treating the supplying of blood for transfusions as a service rather than a product. In addition, courts in all states and the District of Columbia, except Vermont where the issue has not yet been considered by its supreme court, have rejected claims based on product liability, strict liability, or implied warranty. For the text of the various blood shield statutes, see A L A . CODE § 7-2-314 (1984); ALASKA STAT. § 45.02.316(e) (1989); ARIZ. REV. STAT. A N N . § § 3 2 - 1 4 8 1 , 36-1151 (1986); A R K . STAT. A N N . § 20-9-802 (1987); C A L . HEALTH & SAFETY C O D E § 1606 (West 1990); C O L O . REV. STAT. § 13-22-

104 (1987); CONN. G E N . STAT. A N N . § 19a-280 (West 1986); D E L . C O D E A N N . tit. 6, § 2-316(5) (1975); F L A . STAT. A N N . § 672.316(5) (West Supp. 1990); G A . C O D E A N N . § 105-1105 (1984); HAW. REV. STAT. § 3 2 5 - 9 1 (1985); IDAHO C O D E § 3 9 - 3 7 0 2 (1985); Ill. REV. STAT. ch. 111 1/2,

¶ 5102 (1990); I N D . C O D E A N N . § 16-8-7-2 (West 1984); IOWA C O D E A N N . § 142A.8 (West 1989); K A N . STAT. A N N . § 65-3701 (1985); KY. REV. STAT. A N N . § 139.125 (Michie/Bobbs-Merrill 1982); L A . REV. STAT. A N N . § 9:2797 (West Supp. 1990); M E . REV. STAT. A N N . tit. 11, § 2-108 (West Supp. 1989); M D . HEALTH-GENERAL C O D E A N N . § 18-402 (1990); M A S S . G E N . LAWS A N N . ch. 106,

§ 2-316(5) (West 1990); M I C H . COMP. LAWS A N N . § 333.9121 (West 1980); MINN. STAT. A N N . § 525.928 (West 1975); Miss. CODE A N N . § 41-41-1 (Supp. 1989); M o . A N N . STAT. § 431-069 (Vernon Supp. 1990); MONT. C O D E A N N . § 50-33-102 to 104 (1989); N E B . REV. STAT. § 71-4001 (1986); NEV. REV. STAT. § 460.010 (1987); N . H . REV. STAT. A N N . § 507:8-b (1983); N . M . STAT. A N N . § 24-10-5 (1989); N.Y. P U B . HEALTH LAW § 580(4) (McKinney 1987); N . C . G E N . STAT. § 130A-410 (1989); N . D . CENT. C O D E § 41-02-33(3)(d) (1983); OHIO REV. C O D E A N N . § 2108.11 (Baldwin 1990); O K L A . STAT. tit. 6 3 , § 2151 (West 1984); O R . R E V . STAT. § 9 7 . 3 0 0 (1989); P A . CONS. STAT. A N N . tit. 3 5 , § 10021 (Purdon 1985); R.I. G E N . LAWS § 23-17-30 (1989); S.C. C O D E A N N . § 44-43-10 (Law. Coop. 1985); S.D. CODIFIED LAWS A N N . § 57A-2-315.1 (1988); T E N N . C O D E A N N . § 47-2-316(5) (1979); T E X . CIV. PRAC. & R E M . C O D E A N N . §§ 7 7 . 0 0 1 -

003 (Vernon 1986 & Supp. 1990); UTAH C O D E A N N . § 26-31-1 (1989); V T . STAT. A N N . tit. 9 A , § 2 108 (1990); VA. CODE A N N . § 32.1-297 (1985); WASH. REV. C O D E A N N . § 70.54.120 (Supp. 1990); W. V A . C O D E § 16-23-1 (1985); Wis. STAT. A N N . § 146.31(2) (West 1989); W Y O . STAT. § 35-5-110 (1990). 28 29 30

675 F. Supp. 1466 ( D . M d . 1987). 315 M d . 7 0 4 , 556 A . 2 d 1107 (1989). Jones v. Miles Laboratories, 700 F. Supp. 1127 ( N . D . Ga. 1988), aff'd, 887 F.2d 1576 (11th Cir. 1989).

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for T-A AIDS transmission. Robert K. Jenner suggested that medical malpractice suits are the place to start, "because that is what we [lawyers] are familiar with."31 Three basic negligence theories could lead to recovery from physicians and hospitals. First, there might have been a negligent determination of the need for a blood transfusion. Second, there could have been negligent medical treatment that created the need for the transfusion. Finally, there might have been a negligent failure to use a patient's own blood, rather than a transfusion from a stranger.32 On the other hand, David Baum suggested that blood banks might be liable under three different negligence theories: (1) failure to use surrogate tests to eliminate AIDScontaminated blood before 1985; (2) failure to use the ELISA test once it was available in March of 1985; and, (3) failing to warn the donor or the donor's partner after "looking back" and discovering the AIDS antibodies in donated blood.33 In the past year, each of these theories except the last has prevailed in at least one case, and the landscape for negligence liability for T-A AIDS transmission has changed forever. As the 1990s began, it first appeared that the earlier trend would hold. In Rogers v. Miles Laboratories, Inc.,M the United States District Court for the Western District of Washington dismissed a strict liability cause of action in a T-A AIDS case, but remanded a negligence cause of action for trial. Because few such causes had prevailed in court, the plaintiff probably was somewhat discouraged as she proceeded with the case. For example, the first jury award in a T-A AIDS case, for $1.6 million, had been reversed by a United States district court in late 1988.35 Two cases in federal court settled during 1989,36 however, along with three state court cases involving blood banks or the Red Cross.37 There had been one verdict for a plaintiff in the California Superior Court,38 although the re31

32 33 34 35

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Adler, AIDS Litigation Increasing: Targets for Suits Multiplying, Business Ins., Aug. 13, 1990, at 91 (quoting Jenner). Id. Id. No. C88-1441D (W.D. Wash. Jan. 4 , 1990) (Lexis, Genfed library, Dist file). Jones v. Miles Laboratory, 700 F. Supp. 1127 ( N . D . Ga. 1988), aff'd, 887 F.2d 1576 (11th Cir. 1989). See also Judge Reverses $1.6Million Award in AIDS Case, N.Y. Times, Dec. 7, 1988, § B, at 10, col. 4 . John Brown v. American Nat'l Red Cross, Civil No. B-89-1244 (D. Md. Sept. 22, 1989); John Jones v. American Nat't Red Cross, Civil No. 88-4510 (D.N.J. Apr. 19, 1989). Judy Jeanne v . The Hawkes Hospital of Mt. Carmel, Civil N o . 87CV-03-1669 (Ohio, Franklin Cty. Ct. Com. Pleas, Mar. 8, 1990) (Red Cross and one doctor settled; another doctor and hospital proceeded to trial, $12 million verdict for plaintiff, appeal pending); C.W. v. Belle Bonfils Memorial Blood Center, Civil N o . 87-CV-4127 (Colo., Denver Cty. Dist. Ct., Mar. 3 1 , 1989) (verdict for $5.5 million, settled before appeal); Carroll v. Blood Center of Southeastern Wisconsin, Civil N o . 753411 (Wis., Milwaukee Cty. Cir. Ct., Mar. 3 1 , 1988) (verdict for $3.9 million, settled before appeal). Osborn v. Irwin Memorial Blood Bank, San Francisco, No. 89-1642 (Cal. Super. Ct., Dec. 1, 1988).

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covery was limited. Thus, while there had not yet been a major negligence liability judgment in a T-A AIDS case as the 1990s began, the stage was set for one.

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A. Gaffney v. United States Gqffhey v. United States39 was decided by the United States District Court for the District of Massachusetts on April 26, 1990. In Gaffney, a man who had been diagnosed as HIV positive and whose wife and son died from AIDS alleged that negligence in the management of his wife's pregnancy by her physician resulted in a transfusion with tainted blood.40 In February of 1981, Marine sergeant Martin F. Gaffney and his pregnant Japanese fiance, Mutsuko Kuniyoshi, came to the United States from Gaffney's post in Japan. They were married in March, the same month that Mutsuko came under the care of the Long Beach Naval Hospital in California. The nurse who saw her estimated that Mutsuko's baby was due on August 23. The Chief of Gynecology and Obstetrics Services at the hospital became her attending physician, seeing her for the first time on May 14. She returned for a regularly scheduled follow-up visit three weeks later, and then every two weeks until August 5. Thereafter, her physician saw her weekly, as was his custom with patients after their 36th week. By this time she was overdue, but the physician saw no reason for concern.41 When he saw Mutsuko on September 2 there was still nothing to suggest a problem. However, during the September 9 visit the physician ordered an Oxcytoxin Challenge Test (OCT) to monitor the fetus's wellbeing. On September 16, the physician first noticed changes in the cervix, but he judged that Mutsuko was still not ready to deliver, so he ordered another OCT and when the results were negative he sent her home again. On September 19, Mutsuko began to experience what she characterized as labor pains and her husband rushed her to the hospital. A nurse found her unchanged and sent her home with instructions about what to do if she went into labor. The nurse was following the physician's explicit instructions regarding obstetrical services on the weekend. Two days later Mutsuko returned to the hospital with continuous contractions, an elevated temperature, and a dead fetus. After several more hours of labor, her physician performed a cesarean section.42 By the next morning, Mutsuko's red blood count was so depressed that her physician ordered a transfusion

39 40

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No. 88-1457-Z (D. Mass. Apr. 1990) (Lexis, Genfed library, Dist file). See also Golden, Death of a Family, Boston Globe, Sept. 4, 1988, Magazine at 20 (more complete account of the Gaffney family's experience). Gaffney, at *2-*4 (asterisk indicates Lexis pagination). Id. at *4-*5.

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of two units of packed red blood cells. On September 29, she was discharged from the hospital. Two years later, Mutsuko delivered a girl, and nearly two years after that, a boy. The boy, John Martin Gaffney, began to be sickly when only a few months old, and on May 9, 1986, he was diagnosed with AIDS. Additional tests revealed that both Mr. and Mrs. Gaffney were positive for HIV, although their daughter, Maureen Emiko Gaffney, continues to be negative. John Martin died of AIDS on August 15, 1986, and Mutsuko died of pneumonia caused by AIDS on May 31, 1987.43 Gaffney brought suit under the Federal Tort Claims Act.44 The court, by its pretrial order of April 18, 1989, was limited to findings of fact and conclusions of law concerning liability. The questions of fact included whether the physician was negligent, whether the negligence caused Mrs. Gaffney to receive a transfusion, whether the blood given was infected, and whether the incidence of AIDS in the family was attributable to the transfusion.45 The sole issue of law to be resolved was whether the United States was responsible for some or all of the Gaffneys' harm.46 The trial was bifurcated so that the first phase concerned only liability and the second phase would determine damages.47 Gaffney alleged that the failure to induce labor on September 16 was a breach of the standard of care. He further alleged that the need for an immediate cesarean section would have been revealed had an OCT been performed on September 19. The failure to deliver the fetus on September 19 resulted in its intrauterine death, which in turn resulted in Mutsuko's infection. Infection is a known cause of excessive blood loss, which led in turn to anemia. Thus, Gaffney asserted a chain of causation leading from the breach of the standard of care to the transfusion. While transfusion was the proper treatment in 1981 for such a blood loss, it was well known at that time that every transfusion carries a risk of transmission of communicable diseases that might not be detected by testing the blood.

43 44

45 46 47

Id. at *5-*6. 28 U . S . C . § 2674 (1988) (allows United States to be sued in tort for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government acting within the scope of his or her employment, with several exceptions). Gaffney, at *2. Id. The first step toward the determination of damages was taken on October 26, 1990, when the United States District Court for the District of Massachusetts determined that: (1) Cal. Civ. Code § 3333.2 (West 1990), which applies to this case, places a $250,000 cap on noneconomic damages recoverable by each of the three claimants who suffered direct injury as a result of the defendant's negligence; (2) Cal. Civ. Code § 3333.2 is constitutional; (3) the children may not claim for loss of consortium; (4) a dismissed claim for negligent transportation of the son may be reinstated; and, (5) to the extent that the son's claim is not based on medical malpractice, it is not subject to the limitation of § 3333.2. See Gaffney, supra note 39.

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AIDS was precisely that kind of disease in 1981, and Gaffney asserted that one of the units of blood given to Mutsuko was tainted with the AIDS virus.48 The court determined that: (1) the failure to monitor the fetus on September 19 was a breach of the duty of care under the circumstances of the case; (2) the fetus died of hypoxia, lack of oxygen, from which it had been suffering for two or three days before death, and that an OCT performed on September 19 would in fact have been abnormal, leading to an immediate cesarean section; (3) Mutsuko's excessive blood loss was caused by a combination of factors, including infection, lengthy labor, the large size of the baby, and a drug given to induce labor, at least two of which were directly traceable to the delay in delivery and the changed circumstances caused by the delay; (4) the amount of blood lost led directly to the transfusion; (5) one of the units of blood given to Mutsuko was infected with HIV; and, (6) both Mr. Gaffney and the child John Martin were infected with HIV by Mutsuko.49 Although AIDS was not a known risk of blood transfusions in September of 1981, it was known that transfusions can transmit many diseases, including hepatitis, syphilis, malaria, and several viruses. Infection with a communicable disease thus was a foreseeable consequence of a blood transfusion, even in 1981. Because the negligent conduct was a substantial factor in bringing about the harm to Mutsuko and her family,50 "the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable."51 Finally, the court applied Justice Cardozo's Palsgraf test,52 to determine whether the other family members were within the "orbit of the danger."53 The court, however, modified the question under California law from whether the additional injuries were foreseeable to whether the injuries to the family members resulted directly from the same breach of duty as did Mutsuko's injuries.54 Clearly they did, and the government was therefore liable. The issue of damages will be decided at a subsequent trial.

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Gaffney, at *5-*7. Id. at *12-*20. California law, under which Gaffney was decided, follows the Restatement position that "[i]f the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable." RESTATEMENT (SECOND) OF TORTS § 435(1) (1965). Gaffney, at *21 (quoting Parker v. San Francisco, 158 Cal. App. 2d 597, 323 P.2d 108 (1958)). Gaffney, at *24 (citing Palsgraf v . Long Island R. C o . , 248 N.Y. 3 3 9 , 162 N . E . 99 (1928)). Palsgraf, 162 N . E . at 100. See, e.g., Weirum v . R K O General, Inc., 15 Cal. 3d 4 0 , 539 P.2d 3 6 , 123 Cal. Rptr. 468 (1975).

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B. Doe v. United States The issue of damages for T-A AIDS that results from medical malpractice was recently decided in a comparable case, Doe v. United States.55 In this tragic case, a five-year-old boy contracted AIDS through a naval surgeon's negligence in a routine tonsillectomy on April 21, 1983. At the conclusion of the surgery, the physician placed precautionary stitches at the inferior poles of both tonsils, even though normal postoperative bleeding had been adequately controlled by suction cautery. The placing of such stitches creates a risk of impaling the nearby lingual artery while masking the damage. This impaling of the artery is exactly what happened.56 When the boy's mother brought him to the hospital emergency room five days later, after he had vomited significant amounts of blood and blood clots, the surgeon electrocauterized the tissue to stop the bleeding. The boy was then given his first transfusion of one-half unit of blood and was admitted to the hospital. He suffered another episode of heavy bleeding several hours later, and the surgeon then applied additional sutures in a mattress configuration, requiring two holes for each suture. The boy received a total of four more units of blood that day.57 One week later, he was discharged, and the same evening suffered the most serious bleeding yet. This time his mother expressed a lack of confidence in the physician, and arranged for the boy's transfer to Boston Children's Hospital. Before the transfer could be effected, however, he received two more units of blood. At Children's Hospital, a pediatric otolaryngologist noticed extensive tissue necrosis in an area extending well beyond the tonsillar fossa, and when she suctioned away the old blood clots, the boy began bleeding profusely. In a seven-hour operation, the specialist ligated all the arteries in the area to stop the bleeding. During the surgery and the post-operative recovery, he received an additional 47 units of blood.58 When the boy stopped growing in 1986, after displaying increased susceptibility to a variety of infections, a blood test revealed him to be HIV positive. He began taking the experimental drug azidothymidine (AZT) in 1988, and was diagnosed with AIDS in March of 1989. The uncontradicted medical evidence was that it is 80% to 90% likely that he will die before 1992.59 The boy's mother brought suit against the United States under the 55

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737 F. Supp. 155 (D.R.I. 1990). See also $1 Million Is Given to Boy with AIDS, N.Y. Times, May 13, 1990, § 1, at 20, col. 6. Doe, 737 F. Supp. at 155-57. Id. Id. at 156-57. Id. at 158.

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Federal Tort Claims Act.60 The United States District Court for the District of Rhode Island first determined in a separate case that the physician was negligent,61 then found that the negligence proximately caused the boy's AIDS.62 In establishing proximate cause, the court held that the negligence was a cause in fact of the injury and the injury was foreseeable. The evidence established that the first surgeon's actions increased the amount of blood that had to be administered during the course of treatment. Expert testimony further established that "but for" the delay and the actions of the first surgeon, the patient would have required no more than two units of blood rather than the 54 units he ultimately received. The plaintiff in this case did not conclusively prove that neither of the first two units were tainted with HIV. However, it was not necessary that he do so because the plaintiff in a negligence action need not conclusively negate all other causes; it is enough that the plaintiff establish by a preponderance of the evidence that it is reasonably probable that his condition resulted from that negligence.63 Further evidence was presented that 24 of the 47 units of blood administered at Children's Hospital were frozen blood products that could very well have been donated before the FDA screening requirements became effective. Combined with the "look-back" procedures used to trace and rescreen the donors, it is all but certain that one of the frozen units was tainted. Because none of the frozen units would have been necessary but for the first physician's negligence, causation in fact was established.64 Causation in fact is necessary but not sufficient to establish proximate cause. The plaintiff also must establish that the alleged injury was a direct or foreseeable result of the defendant's negligence. At the time the boy underwent the tonsillectomy on April 21, 1983, blood transfusions presented a clearly foreseeable risk that the patient could contract AIDS. Further, as in Gaffiiey, even if the specific risk of AIDS was not reasonably foreseeable, it had been generally recognized for years that transfusions could transmit potentially fatal diseases like hepatitis and malaria. Thus, it was reasonably foreseeable that a transfusion could transmit a life threatening disease. Because both causation in fact and foreseeability were present, proximate cause was established.65 The court awarded damages as follows: (1) approximately $64,000 in previous medical expenses not recovered from collateral sources; (2) ap60

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28 U . S . C . § 2674 (1988) (United States may be held liable for negligence of employee in the scope of employment). Doe, 737 F. Supp. at 158. Id. at 159-62. Id. at 159-61. Id. at 160-61. Id. at 161-62.

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proximately $180,000 for the present value of the probable future care and treatment the boy will require; (3) lost earning capacity, because the boy is not expected to live beyond college age and begin working, less the amount of personal living expenses to be incurred during the period of employment, calculated at a present value of approximately $230,000; and, (4) past and future pain and suffering in the amount of $800,000. Total damages amounted to approximately $l,275,000,66 certainly not inconsistent with comparable medical malpractice damage awards.

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C. Recent Liability Awards The damage award in Doe is in the same general range as the first negligence award in a T-A AIDS case, Osbom v. Irwin Memorial Blood Bank,61 where $750,000 was awarded to the parents of a child who was given contaminated blood during a heart operation. In Osborn, the blood bank refused to allow the parents to solicit blood from relatives and friends, ostensibly because the child had a rare blood type and so-called directed donations would not have been sufficient. The judge refused to admit evidence of the rare blood type, but also directed the jury not to award punitive damages or damages for pain and suffering.68 The case is currently on appeal, and there are at least 15 other cases pending against the same blood bank and hundreds pending against other suppliers.69 Until very recently, the most spectacular damage award in a T-A AIDS case was $12 million, awarded on March 8, 1990, by a jury in Columbus, Ohio. In Judy Jeanne v. The Hawkes Hospital of Mount Carmel,10 the defendant American Red Cross settled but the hospital and one of the physicians proceeded to trial. If ever a case provided an example of negligence liability in T-A AIDS transmission, under almost every conceivable theory, Judy Jeanne is certainly the case. First, the Red Cross and one of the physicians declined the patient's mother's request to donate blood specifically to avoid the risk of AIDS.71 Still concerned about the risk, the patient donated one unit of her own

66 67

68 69 70 71

Id. at 162-68. No. 89-1642 (Cal. Super. Ct. Dec. 1, 1988). See also Schachner, Blood Bank Found Negligent in AIDS Case, Business Ins., Dec. 12, 1988, at 3; Bishop, Blood Banks Loses Suit Over AIDS Virus Tainting, N.Y. Times, Dec. 3 , 1988, § 1, at 9, col. 1; Zonana, Winning of Suit on AIDS-Tainted Blood Could Affect Scores of Cases, L . A . Times, D e c . 3 , 1988, pt. 1, at 3 1 , col. 1. McGraw, supra note 22. Liability's New Frontiers, Business Law Brief, Feb. 1989. Civil No. 87CV-03-1669 (Ohio, Franklin Cty. Ct. Com. Pleas, Mar. 8, 1990). Plaintiffs' Memorandum Contra Defendants' Motion for Summary Judgment at 1-2, Judy Jeanne v . The Hawkes Hospital of Mt. Carmel, No. 87CV-03-1669 (Ohio, Franklin Cry. Ct. Com. Pleas, Mar. 8, 1990). The author thanks Mr. James M . Roper of Isaac, Brant, Ledman, & Becker of Columbus, Ohio, for graciously providing a copy of this document.

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blood, which was used during the surgery.72 Next, the Red Cross did not test the blood it had on hand when it received its ELISA kits on March 7, 1985; the particular blood given to the patient was held until March 12 without being tested.73 The contaminated blood was then sent to a hospital where it was stored until March 25. It was then returned to the Red Cross and still was not tested.74 The next day it was sent to the defendant hospital, without being labeled as untested.75 At that time, a resident ordered an additional transfusion for the patient without ever seeing her—a transfusion that an expert witness testified was unnecessary.76 The jury apparently agreed that Judy Jeanne is an exemplary case because it reached its $12 million verdict in just two hours of deliberation.77 Since the verdict in Judy Jeanne, a jury in Arizona has awarded $28.7 million to a five-year-old boy whose parents claim he was given an unnecessary transfusion.78 In December of 1988, a Milwaukee jury awarded $3.9 million to a man whose blood bank had failed to adequately test in March of 1985.79 Another verdict in Denver awarded $5.5 million to a woman in March of 1989, under the same circumstances.80 Rather than taking the time necessary for the appellate procedure, the plaintiffs in both cases settled with the blood banks before appeal. The amount of the settlements has not been disclosed. D. Settlement: The Wave of the Future? In 1990, cases against the American Red Cross in Maryland and New Jersey settled before trial. In Brown v. American National Red Cross,*1 the plaintiffs alleged that a negligent screening of blood donors resulted in a case of T-A AIDS transmission in March of 1985. The blood was donated the same week that the ELISA test kits were sent, but the blood never was screened although it was held six days after the ELISA kits arrived and the receiving hospital never was warned that the blood had not been screened. 72

73 74 75 76 77

78 79

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Willard, Tainted Transfusion, O H I O L . , Apr. 15-May 15, 1990, at 18, col. 3 . Mr. Roper also provided this article. Plaintiffs' Memo, supra note 7 1 , at 2-3. Id. at 3 . Id. Willard, supra note 72, at 30. Marcotte, Record AIDS Verdict: Woman Who Received Infected Blood Wins $12 Million, 76 A.B.A.J. 26 (June 1990). The defendants have appealed the verdict. See McGraw, supra note 22. Carroll v. Blood Center of Southeast Wisconsin, Civil No. 753411 (Wis., Milwaukee Cty. Cir. Ct., Dec. 9, 1988). See also Victim of AIDS Wins $3.9 Million Lawsuit, N.Y. Times, Dec. 11, 1988, § l , p t . 1, at 32, col. 1. C.W. v. Belle Bonfils Memorial Blood Center, Civil No. 87-CV-4127 (Colo., Denver Cty. Dist. Ct., Mar. 3 1 , 1989). See also Pankratz, Woman with AIDS Wins Lawsuit, Denver Post, Apr. 1, 1989, § A, at 1. Civil No. B-89-1244 (D. Md. Sept. 22, 1989).

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In addition to the negligence count, the plaintiffs alleged counts of gross negligence, strict liability in tort, breach of warranties, and loss of consortium, seeking $5 million for each of the five counts.82 Although the last four counts probably would have been dismissed, the negligence count would have been difficult to defend. In any event, the Red Cross settled the case before trial. The situation in Jones v. American National Red Cross™ was much worse. The local chapter received the ELISA kits on March 8, 1985, and did not receive the donation until almost three weeks later. The blood never was tested before it was transfused to plaintiff on April 17, 1985.M In Jones, too, the American Red Cross settled before trial. E. Other Awards Other negligence awards recently have been made in T-A AIDS transmission cases. In Texas, a state judge awarded $121,000 to the mother of a two-year-old girl who died after receiving a blood transfusion for a liver ailment the week after she was born in February of 1983.85 The judge did not find negligence in the testing of the blood, because this was some two years before the availability of the ELISA test, but rather held that "[t]he screening process for donors employed . . . fell below the standard of care . . . . [T]he failure of adequate screening was negligence and a proximate cause of the AIDS infection of the child and her subsequent death."86 Another Texas court previously had refused to find liability in a case from 1984, because at that time there was no required test and the defendant blood bank was using screening procedures similar to those of most others in the country.87 In California, a Los Angeles Superior Court jury awarded $3.01 million to a girl who contracted AIDS through a transfusion during surgery to repair a congenital heart defect. The plaintiffs theory of the case was that the defendant had failed to warn about the risk of AIDS from a transfusion. The Red Cross settled two days before trial for an undisclosed amount.88 In Illinois, a Cook County Circuit Court jury awarded $2.5 million to a man whose physician's malpractice led to unnecessary transfusions.89 82

83 84 85 86 87

88 89

Complaint at 1-8, Brown v. American Nat'l Red Cross, Civil No. B-89-1244 (D. Md. Apr. 2 8 , 1989). Civil N o . 88-4510 (D.N.J. Apr. 19, 1989). Jenner, supra note 2 1 , at 35 n.9. Woman Awarded $121,000 in AIDS Death of Baby, U.P.I., July 10, 1990. Id. See Bradford, Blood Bank Not Negligent in AIDS Case: Texas Jury, Business Ins., Jan. 9, 1989, at 2. See McGraw, supra note 22. $2.5 Million Awarded in AIDS Lawsuit, Chicago Tribune, June 16, 1990, at 3 .

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F. Class Action Issues Finally, in what may turn out to be the largest case yet, a Maryland couple filed a class action suit in the District of Columbia Superior Court against the American Red Cross on behalf of 230 individuals who contracted AIDS after receiving blood transfusions before the ELISA test was available.90 The plaintiffs allege that surrogate testing and better donor screening procedures could have prevented at least some of the AIDSinfected blood from being transfused. The complaint seeks unspecified money damages and health monitoring for all members of the class.91 A similar argument was upheld in a preliminary motion in Doe v. University Hospital ofN. Y. U. Medical Center,92 a case pending in the New York trial court. In Doe, the plaintiff received a blood transfusion during open-heart surgery in 1984 at New York University and was diagnosed with AIDS in 1987. The defendant moved to dismiss the action because there was no screening test available at the time and the claim was barred because of the statute of limitations in medical malpractice suits. The court denied the motions because AIDS was a known risk of transfusions in 1984, surrogate testing and better donor screening procedures were available, and because the statute of limitations is tolled in negligence actions until the plaintiff discovers the injury.93 The tolling of the limitations statute in AIDS cases was established in the landmark Prego v. City of New York9* decision in 1989, and reaffirmed only two weeks before the Doe ruling in a preliminary motion in Amin v. Lenox Hill Hospital.95 Prego involved a health care worker who contracted AIDS from a needle prick,96 while Amin is a true T-A AIDS case involving a woman who contracted AIDS from a transfusion given during a March, 1985 operation.97 The courts in both cases held that, under New York's "toxic tort" statute,98 the three-year statute of limitations for bringing a personal injury action for exposure to any toxic substance, including blood transfusions, does not begin to run until the injury is discovered.99 The Second Circuit Court of Appeals, however, in Hoetnke v. New York Blood Center,100 upheld summary judgment and a directed verdict for 90 91 92 93 94 95

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Sardella, Couple Sues Red Cross for 230 AIDS-Infected Blood Transfusions, U.P.I., July 17, 1990. Id. N.Y.L.J., Aug. 14, 1990, at 17 (New York Supreme Court, 1A Part 26). Id. 147 A.D.2d 165, 541 N.Y.S.2d 995 (1989). See Anderson, Claim Over Blood Testing Stands; Suit Asserting Infection with AIDS Virus Ruled Based in Negligence, N.Y.L.J., Aug. 2 , 1990, at 1. Prego, 147 A.D.2d 165, 541 N.Y.S.2d 995 (1989). Anderson, supra note 9 5 . N.Y. Civ. PRAC. L. & R. § 214-c (McKinney 1987 & Supp. 1989). Anderson, supra note 9 5 . 912 R 2 d 550 (2d Cir. 1990), aff'g 720 F. Supp. 45 (S.D.N.Y. 1989).

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the defense in a T-A AIDS case from 1981. In Hoemke, claims of medical malpractice, fraud, and intentional infliction of emotional distress against the physicians were dropped because the statute of limitations had run.101 The District Court for the Southern District of New York dismissed all of the remaining causes of action, except a negligence claim against the hospital because there were questions of fact regarding the hospital's transfusion policies.102 The negligence action against the blood bank was rejected because in 1981 it was not known that AIDS was a blood-borne disease.103 The case proceeded to trial on the negligence cause of action, and the district court granted the hospital's motion for a directed verdict.104 The district court's reasoning was that the hospital had not violated the standard of care because Hoemke had failed to demonstrate that as of 1981 any other hospital had a program in place that would have prevented her exposure to HIV.105 The court of appeals was careful to limit its affirmation to "the particular facts of this case."106 A later case in the same district, Sweeney v. Presbyterian/Columbia Presbyterian Medical Center,107 also dismissed a T-A AIDS case brought under a claim of failure to obtain informed consent because such a cause is considered a species of medical malpractice and the statute of limitations had run. II. RECENT DEVELOPMENTS Plaintiff's attorneys in several negligence cases against the Irwin Memorial Blood Bank in San Francisco recently moved to depose CDC AIDS researchers Donald Francis and Bruce Evatt.108 In earlier attempts to depose scientists, the government has successfully argued that there are simply too many requests for their depositions and that their real work of combating AIDS is more important. Federal district courts in Georgia109 and California110 have quashed subpoenas in two cases, and the issue is on appeal to both the Ninth and Eleventh Circuit Courts of Appeal. Since Francis and Evatt might be able to support the plaintiffs claims that blood 101

720 F. Supp. 4 5 (S.D.N.Y. 1989). Hoemke v. New York Blood Center, N o . 88 Civ. 9029 (S.D.N.Y. Nov. 2 8 , 1989) (Lexis, Genfed library, Dist file). 103 Id. at * 5 . 104 912 F.2d 550, 552 (2d Cir. 1990). See also Selected New Decisions by the U.S. Court of Appeals, N . Y . L . J . , Sept. 10, 1990, at 2 . 105 Hoemke, 912 F.2d at 5 5 3 . 106 Id. at 5 5 2 . 107 738 F. Supp. 802 (S.D.N.Y. 1990). 108 Mintz, Plaintiffs' Bar, Government Nearing Showdown Over AIDS Researcher Depositions: Texas Litigants Among Those Who Have Failed to Get Testimony, T E X . LAW., Aug. 2 7 , 1990, at 7 . 109 Moore v . Armour Pharmaceutical C o . , 129 F.R.D. 5 5 1 ( N . D . G a . 1990). 110 See id. at 552, n. 1 (discussing Kellar v. Cutter Laboratories). 102

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banks failed to heed government warnings in the early 1980s, their testimony could be crucial to findings of negligence liability. The issue may have to be resolved by the United States Supreme Court. Another problem facing plaintiffs in T-A AIDS cases is the need to gather testimony from the donor of the contaminated blood to establish negligence on the part of the blood bank. Here, the plaintiff confronts confidentiality statutes and must bring a preliminary suit to compel disclosure of the individual's name. Several such suits have been brought, with mixed results. In Coleman v. American Red Cross,m the plaintiff brought a motion to compel discovery, requesting the name of the donor to determine if the defendant had followed its procedures. The Federal District Court for the Eastern District of Michigan held that the potential danger to the nation's blood supply system from donor disclosure outweighed the plaintiffs discovery needs.112 The United States District Court for the District of South Carolina came to the same conclusion in Doe v. American Red Cross Blood Services,'" as did the District Court for the Northern District of Georgia in Bradway v. American National Red Cross.m However, in Tarrant County Hospital District v. Hughes,u5 the Supreme Court denied certiorari to a lower court's ruling requiring the hospital to divulge to the plaintiffs attorney the names of donors who gave blood for the transfusion.116 The donor's deposition played a large role in the plaintiffs victory. According to attorney Lowell Dushman, the donor "told us that if anyone had asked he would have admitted he was an IV drug user," but that "[n]o one bothered to ask."117 In Mason v. Regional Medical Center of Hopkins County,ni the United States District Court for the Western District of Kentucky came to the same conclusion but provided for protection of the donor's identity. The supreme court of Colorado took another tack in Belle Bonfils Memorial Blood Center v. District Court.U9 The court determined that the patient was not entitled to obtain the name and address of the donor, but was entitled to submit written questions to the donor. The patient's interest in obtaining the information outweighed the privacy interest of the donor.120 111

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130 F.R.D. 360 (E.D. Mich. 1990). See also Red Cross Need Not Identify HIV Blood Donor, Nat'l L.J., Apr. 30, 1990, at 2 8 . Coleman, 130 F.R.D. at 360. 125 F.R.D. 646 (D.S.C. 1989). 132 F.R.D. 78 ( N . D . Ga. 1990). 734 S.W.2d 675 (Tex. Ct. App. 1987), cert. denied, 108 S. Ct. 1027 (1988). See Woman Awarded $121,000, supra note 8 5 . Id. 121 F.R.D. 300 (W.D. Ky. 1988). 763 P.2d 1003 (Colo. 1988). Belle Bonfils, 763 P.2d at 1010-14.

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A California Superior Court judge took the same position, allowing the plaintiffs to submit questions to the donors through the court, preserving the donor's confidentiality.121 Given the conflicting decisions climbing the judicial ladder, this is another issue that may have to be resolved by the United States Supreme Court. Finally, in Moore v. Armour Pharmaceutical Co.,m a case pending in the United States District Court for the Middle District of Florida, the court denied the defendant's motion for summary judgment on a products liability cause of action in a T-A AIDS case. The court stated that a pharmaceutical company was obligated to warn hemophiliacs using a blood extract manufactured by the company of the dangers of contracting AIDS as early as 1982. At that time, the company should have been aware of respected medical authority that there was a risk associated with its product, even though there was not yet a consensus in the medical community that AIDS could be transmitted through blood. Further, the court ruled that the defendant had failed to show any federal policy that would be obstructed by allowing a cause of action for the defendant's alleged failure to apply for approval of a warning label upon receiving reliable medical evidence that its blood extract could be the carrier of a fatal disease.123 This is the first time a federal court has been willing to entertain a product liability cause of action in a T-A AIDS transmission case. Should the court find for the plaintiff, such a reversal of long-standing precedent certainly would warrant an appeal. This could become a third issue that may have to be resolved by the United States Supreme Court.

m. PROPOSAL The blood industry in the United States is a $2.5 billion annual enterprise.124 The American National Red Cross was established as a corporation by Congress in 1905,125 and it supplies more than 50% of the approximately 11 million pints of blood donated annually for transfusions in this country.126 The remainder of the blood for transfusion is collected by more than 150 independent blood centers.127 The Red Cross has established 56 blood service regions to assist in the collection of blood for transfusions. The regions work with local Red Cross chapters under the supervision of 121

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Olszewsli & Tuller, AIDS Lawsuits: Lawyers to Quiz HIV Blood Donors, San Francisco Chronicle, Dec. 2 7 , 1989, at A 2 . 129 F.R.D. 551 ( N . D . G a . 1990). Product Safety and Liability, 59 U.S.L.W. 2212 (Oct. 9 , 1990). McGraw, supra note 2 2 . 36 U . S . C . § 1 (1987). See Genetic Systems Corp. v. Abbott Laboratories, 691 F. Supp. 4 0 7 , 4 0 9 ( D . D . C . 1988). Id. at 4 0 9 , n . 4 .

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national headquarters. The chapters and blood service regions are not separate corporations and are not allowed to be constituted as separate legal entities. The regions, like the local chapters, all operate under the same license granted by the Food and Drug Administration.128 A suit against any local chapter or region is thus a suit against the American National Red Cross. According to James MacPherson of the Blood Council of Community Blood Centers, most blood banks were insured for $2 to $5 million per year for the years in question. Even one substantial judgment could force them to raise prices dramatically or enter bankruptcy.129 All blood banks participating in one major study have at least one—and in most cases several—pending suits regarding liability for T-A AIDS transmission.130 A major blood bank liability insurer, Great American Insurance Co. of Cincinnati, raised its rates to $3.00 per donation from 65C per donation in September of 1987. m At the same time, the coverage basis was changed from occurrence to claims-made; the coverage was for $1 million per occurrence.132 The American Association of Blood Banks in Arlington, Virginia, promptly dropped the liability insurance program it provided for its 60 blood bank members.133 There is clearly an emergency in the blood industry. The American Red Cross and local blood banks are concerned about possible negligence liability, and they have been struggling to keep cases out of court. They are exploring the possibility of a federally-aided nofault compensation fund,134 perhaps modeled along the lines of the Vaccine Injury Compensation Trust Fund.135 Funded by an excise tax and providing a pool for compensation for qualified individuals, such a fund would go a long way toward solving an urgent litigation problem and would spread the cost of this dread disease among a wider population. Eligibility for compensation could be limited to those individuals who contracted AIDS, ARC, or who became HIV positive as a result of blood transfusions before the ELISA test became available in March of 1985. No proof of negligence would be required and the amount of compensation would be limited in some manner, perhaps to $1 million per individual. An excise tax on each pint of blood or blood product trans-

128

Id. at 409. McGraw, supra note 2 2 . 130 Blakeslee, Blood Banks Facing Hundreds of AIDS Suits, N.Y. Times, Apr. 2 7 , 1989, § B , at 18, col. 1. 131 Bradford, supra note 8 7 . 132 Id. 133 Id. 134 Blakeslee, supra note 130; McGraw, supra note 2 2 . 135 2 6 U . S . C . A . § 9510 (West 1989). 129

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fused could be used to fund the program.136 Given the large number of persons with AIDS who are potentially involved, initial costs would be quite high. However, given the terrible mortality rate of the disease, future costs would decrease dramatically. The excise tax or other funding mechanism would simply catch up with the outlay in future years. Such a fund would not operate to shield physicians or hospitals who were found negligent, nor would it shield blood banks or the Red Cross from negligence after the ELISA test kits were available to screen blood. However, it would provide rapid and desperately needed assistance for the hundreds, perhaps thousands, of persons with T-A AIDS who were exposed to HIV before the test was available. The fund also would protect the nation's blood supply from potential ruin caused by thousands of multi-million dollar judgments leading to blood bank bankruptcies. Given the recent trend, such an outcome is possible if not likely. CONCLUSION Until two years ago, blood banks were able to rely almost completely on state blood shield statutes as an affirmative defense. However, suits alleging a wide variety of negligence causes of action have become more frequent and some of these have been successful. The blood industry has settled claims whenever possible, and although the terms of the settlements have precluded discussion of the monetary amounts, it is fair to say they have been substantial. There is a limit to how many cases can be settled and to how many judgments the blood industry can absorb. It seems clear that there has been a significant change. Courts in a wide variety of jurisdictions are now prepared to find negligence in T-A AIDS cases. Many courts have gone to great lengths to establish proximate cause. It has become apparent that innocent victims of this dread disease deserve to be compensated, and that says something important about our society. It remains to be seen, however, whether and how this compensation will be paid. A balance must be found between the legitimate compensation requirements of persons who contracted AIDS from blood transfusions during the 1983-85 "window" of "knowledge without testing ability," and the equally legitimate needs of the blood industry to continue to supply the nation with blood for transfusions. Only the fed136

An excise tax of $5.00 per pint transfused would raise over $50 million per year in the United States, paid by all persons who receive transfusions, or more accurately their insurance companies. This would effectively spread the cost among a much larger segment of the population. Half a billion dollars in 10 years could be distributed to persons with T-A AIDS. This would go a long way toward easing the burden on individuals such as the Gaffneys and the parents of young John Doe. Larger claims could be pursued through traditional litigation.

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eral government has the resources to attempt such a balancing, and it could surely do so if it had the will. In these days of budget cuts, tax increases, and soaring deficits, however, Congress appears to lack the will to help even those most in need. The prognosis is bleak in more than one sense for persons with T-A AIDS.