Advincula v. United Blood Services, 1-94-3168

• Decision Date: 22 August 1995
• Docket Number: No. 1-94-3168,1-94-3168
• Citation: 274 Ill.App.3d 573,654 N.E.2d 644,211 Ill.Dec. 182
• Parties: , 211 Ill.Dec. 182 Marietta ADVINCULA, Individually and as Special Administrator of the Estate of Ronaldo Advincula, deceased, Plaintiff-Appellee, v. UNITED BLOOD SERVICES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 644

654 N.E.2d 644

274 Ill.App.3d 573, 211 Ill.Dec. 182

Marietta ADVINCULA, Individually and as Special Administrator of the Estate of Ronaldo Advincula, deceased, Plaintiff-Appellee, v. UNITED BLOOD SERVICES, Defendant-Appellant.

No. 1-94-3168.

Appellate Court of Illinois,

First District, Second Division.

Aug. 22, 1995.

Jenner & Block, Chicago (Jerold S. Solovy, Michael T. Brody, Jeralyn H. Baran, Jeffrey W. Mayer, of counsel); Lewis & Roca, Phoenix, AZ (Foster Robberson, of counsel), for appellant.

Margaret Byrne, Judith E. Fors, Chicago; Holland & Hart, Denver, CO (Maureen R. Witt, Elizabeth A. Phelan, Carlos A. Samour, of counsel), for appellee.

Presiding Justice SCARIANO delivered the opinion of the court:

Marietta Advincula (plaintiff) brought suit against United Blood Services (UBS), a blood bank, after her husband died of AIDS which he contracted through blood supplied by UBS. For the reasons set forth below, we affirm the judgment of the circuit court entered on the jury's verdict in favor of plaintiff. ¹

UBS is an operating division of Blood Systems, Inc. (BSI), a not-for-profit corporation. As such, it collects blood from volunteer donors at mobile blood drives and distributes it to, inter alia, area hospitals.

On February 28, 1984, plaintiff's decedent Ronaldo Advincula (Ronaldo) underwent open heart bypass surgery at Illinois Masonic Medical Center. During and after the surgery, he received five units of blood via transfusion, three of which were provided by UBS. In 1987, Ronaldo was diagnosed with acquired immunodeficiency syndrome (AIDS). He died from AIDS-related illnesses in April 1988, leaving his wife, plaintiff, and three daughters.

One of the units of blood provided by UBS was donated by "John Donor" ² during a UBS blood drive at St. Rene's Catholic Church in the City of Chicago in February 1984. There is no dispute that John Donor tested positive for HIV in 1986 and that his blood was the source of Ronaldo's infection. HIV refers to the human immunodeficiency virus, a virus of the T-cell leukemia family which causes AIDS. J.E. Schmidt, M.D., 2 Attorneys' Dictionary of Medicine and Word Finder H-174 (1995).

Plaintiff filed her suit in the circuit court of Cook County on May 26, 1989, and in her third amended complaint, filed on April 30, 1993, she alleged, inter alia, that UBS was negligent in procuring and in distributing John Donor's blood. ³ Recovery was sought pursuant to the Wrongful Death Act (740 ILCS 180/1 (West 1993)), the Survival Act (755 ILCS 5/27-6 (West 1992)), and the Family Expense Law (750 ILCS 65/15 (West 1993)).

After a lengthy trial, the jury found in favor of plaintiff and awarded a total of $2.14 million in damages. The trial court denied UBS' post-trial motion for judgment non obstante veredicto (n.o.v.) or, in the alternative, a new trial. This appeal followed.

The history of the AIDS epidemic in the United States has been chronicled by several authorities. (E.g., United Blood Services v. Quintana (Colo.1992), 827 P.2d 509; see generally, Randy Shilts, And the Band Played On: Politics, People, and the AIDS Epidemic (1987).) For purposes of this opinion, a brief summary of the blood screening techniques available at the time Ronaldo received his transfusion is provided. Historical information is provided only insofar as necessary to explain the methods of blood screening.

UBS, like other blood banks, is regulated by the Federal Food and Drug Administration (FDA). (See 21 C.F.R. § 640.4 (1983) for the regulations in effect at the time Ronaldo received transfusions.) UBS is also subject to the standards set by the American Association of Blood Banks (AABB), a trade association which grants accreditation to blood banks that comply with its standards. The Council for Community Blood Centers (CCBC) is also a trade association, but it does not set forth standards for blood banks to follow.

AIDS is a fatal disease; infection with HIV results in the total collapse of the immune system. In 1982, it became apparent that AIDS was being spread through blood when AIDS was diagnosed in hemophiliacs and blood transfusion recipients. The recognized high risk groups included sexually active homosexual men, intravenous drug users, recently arrived Haitians, and sexual partners of members of those groups. A direct test for AIDS was not developed until 1985. At a meeting held by the Centers for Disease Control (CDC) in January 1983, the CDC suggested using surrogate testing, but blood bankers disagreed with this approach, citing the high expense and the possibility that the blood supply would become dangerously low. Although surrogate tests would detect 66-88 percent of AIDS-infected donations, they had about a five percent false positive rate, thereby resulting in the rejection of some safe blood.

Surrogate testing is an indirect means of evaluating a product. In the context of AIDS, prior to the existence of a direct test for AIDS, testing individuals for symptoms or conditions that commonly appear with HIV-infection was one way of discovering a donor's probable infection with HIV. As early as 1982, five surrogate tests were available, including the hepatitis B core anti-body test. Hepatitis B afflicts many homosexual men and intravenous drug users.

Evidence in the record indicates that surrogate testing was used by at least two blood banks in early 1984, the time at which Ronaldo received his transfusion. However, most blood banks, including UBS, did not utilize surrogate testing.

A second available screening method was that of directed donations. Directed donations refers to the policy of allowing patients to receive blood from family or friends. In 1983, BSI adopted a policy permitting directed donations in communities where there was a demand for directed donations. UBS in Chicago did not adopt such a policy because of its apprehension that family or friends would feel pressured to give blood and to hide high risk factors, such as homosexuality or drug use.

Another available screening method was education and self-deferral of donors. This method was adopted by UBS and other blood banks. Prospective donors were educated as to which were the high risk groups for AIDS and encouraged not to donate if they were within one of those groups. An "Important Notice" was developed for distribution at blood drives. It contained written information on high risk groups for AIDS and informed potential donors of a code question which they would be asked prior to donating. The question was: "Are you in good health today?" If donors felt that they should not donate, they could answer in the negative and avoid any further potentially embarrassing questions. In addition, donors were informed that if they were at risk for AIDS, yet felt compelled to donate, they could call back after donating and confidentially request that the blood bank discard their donations. Interviewers at blood drives were instructed to interview donors in a confidential setting and to ask whether the donor understood the AIDS information.

Finally, direct confrontational questions regarding potential donors' sexual orientation and drug use could have been used, but this approach was not adopted by most blood banks. UBS and others felt that such questions would not be effective and would adversely affect the blood supply.

Within that framework, a discussion of the first issue raised by UBS follows. As noted above, the remaining issues will be addressed in a contemporaneously filed Rule 23 order.

I.

UBS first argues that the trial court erred in interpreting the Blood and Organ Transaction Liability Act (Blood Liability Act) (745 ILCS 40/3 (West 1993)), which sets forth the requisite standard of care for blood banks. UBS contends that the standard of care ought to be defined as the duty to take "due care to follow the standards of the profession." ⁴

Ordinarily, the standard of care in negligence cases is that of the reasonable person. The issue for the jury is whether a reasonable and prudent person would have acted differently under similar circumstances. Cynthia Kelly & John Paul Barber, "Legal Issues in Transfusion Medicine ", 12 Clinics in Laboratory Medicine 819, 821 (1992) (hereinafter Legal Issues ); see generally Michael J. Pollelle & Bruce L. Ottley, Illinois Tort Law § 14.10 (2d ed. 1993).

However, when the conduct of professionals is assessed, the law defers to a great extent to the standards developed and accepted by the particular profession. Thus, the jury is asked to compare the defendant's conduct with that of the other members her profession in their community. (Legal Issues, at 821.) In litigation involving AIDS transmission through blood transfusions, defendant blood banks prefer to be judged by a professional standard of care, asserting, as UBS does, that they cannot be found negligent if they adhered to the standards and customs of the profession. Under this standard, the blood bank can defend its conduct by showing that it followed FDA regulations, AABB recommendations, and common practices of other blood banks. Legal Issues, at 822.

In a negligence action, the plaintiff is required to show by a preponderance of the evidence (1) a duty on the part of the defendant; (2) a breach of that duty; (3) proximate cause; and (4) damages. (Ward v. K mart Corp. (1990), 136 Ill.2d 132, 140, 143 Ill.Dec. 288, 291, 554 N.E.2d 223, 226; see Smith v. Eli Lilly & Co. (1990), 137 Ill.2d 222, 232, 148 Ill.Dec. 22, 26, 560 N.E.2d 324, 328; Carter v. Johnson (1993), 247 Ill.App.3d 291, 301, 187 Ill.Dec. 52, 59-60, 617 N.E.2d 260, 267-268.) The concept of duty embodies the obligation " 'to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy the duty.' " Darling v. Charleston Community Memorial Hospital (1965), 33 Ill.2d 326, 331, 211 N.E.2d 253, 257, ...