Barton v. American Red Cross

• Decision Date: 09 July 1993
• Docket Number: Civ. A. No. 91-T-1001-S.
• Citation: 829 F. Supp. 1290
• Parties: R.A. BARTON, et al., Plaintiffs, v. AMERICAN RED CROSS, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

829 F. Supp. 1290

R.A. BARTON, et al., Plaintiffs, v. AMERICAN RED CROSS, et al., Defendants.

Civ. A. No. 91-T-1001-S.

United States District Court, M.D. Alabama, S.D.

July 9, 1993.

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James Prestwood, Andalusia, AL, Alvin Prestwood, Linda G. Smith, Joseph Borg, Ben Fuller, Montgomery, AL, for plaintiffs.

Kathryn H. Sumrall, Birmingham, AL, for movant/intervenor.

Tony Miller, Jeffrey Grantham, Warren B. Lightfoot, Birmingham, AL, Bruce Chadwick, Deena R. Bernstein, Kathleen Behan, David P. Gersch, Washington, DC, for defendants.

MEMORANDUM OPINION

MYRON H. THOMPSON, Chief Judge.

Plaintiffs, R.A. Barton and her husband and two sons, have brought this lawsuit claiming that defendants, the American Red Cross and Eoline McGowan, M.D., negligently and wantonly failed to screen properly for HIV-infected blood that was given to Mrs. Barton in a transfusion. The Bartons rest their claim on the Alabama Medical Liability Act (AMLA), Ala.Code 1975 §§ 6-5-480 to -488, 6-5-540 to -552. The Bartons also charge the defendants with fraudulently suppressing for six months the knowledge that the blood donor had tested HIV-positive on a subsequent donation. In addition, the Bartons charge the defendants with the tort of outrageous conduct for failing to disclose the donor's HIV-positive status. The Red Cross and Dr. McGowan, who was the medical director for the Red Cross in Alabama at the time of Mrs. Barton's transfusion, move for summary judgment on all of the Bartons' claims. Dr. McGowan also moves to dismiss all claims against her based on official immunity, or in the alternative, to strike the Bartons' jury demand and claims for punitive damages against her.¹ For the reasons set forth below, the Red Cross's and Dr. McGowan's motions for summary judgment are granted and Dr. McGowan's motion to dismiss is denied in part and granted in part.

I. MOTIONS FOR SUMMARY JUDGMENT

As stated, the Red Cross and Dr. McGowan contend that they are entitled to summary judgment on all claims. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." A district court must consider "all the evidence in the light most favorable to the non-moving party ... and resolve all reasonable doubts in favor of the non-moving party." Earley v. Champion International Corp., 907 F.2d 1077, 1080 (11th Cir.1990) (citations omitted).

A. Background

In June 1988, a 25-year-old female donated blood to the Red Cross. She completed a medical history questionnaire and was given a brief examination. The donor read a pamphlet describing individuals who were considered to be at high risk of getting AIDS and she indicated in writing that she understood the pamphlet. She also indicated that she was not in any high risk group. After collecting the donor's blood, the Red Cross tested it for HIV using an initial screening test known as an "ELISA" test, and the blood tested negative. The blood was sent out for use in transfusions even though it is possible for the presence of HIV not to appear in a blood test if the donor is tested within a six month "window period" of being infected with HIV. In July 1988, the Southeast Alabama Medical Center in Dothan, Alabama admitted Mrs. Barton for treatment by Dr. John P. Moore, Jr. The hospital gave Mrs. Barton a transfusion with the blood taken from the donor provided by the Red Cross. The Red Cross kept a record of which hospital had received the blood but received no information as to the identity of the ultimate recipient.

In June 1990, the same donor again gave blood to the Red Cross. On June 9, the Red Cross tested the donor's blood using the initial ELISA test. The blood tested positive for HIV. The Red Cross sent the blood to another laboratory for a confirmatory test and received the results, which were positive, in August 1990. Subsequently, the Red Cross conducted a "look-back" to determine whether the donor had previously given blood and, if so, to identify the recipient hospital. It is unclear when the Red Cross began this procedure. After the Red Cross ultimately conducted the look-back, it notified the Medical Center of the donor's HIV status on December 13, 1990.

On January 3, 1991, Dr. Moore passed the information on to Mrs. Barton, who took an HIV test. In January, Mrs. Barton learned that the results of her initial test and confirmatory test were positive, though the parties dispute the exact date on which she was informed of her confirmatory test results. In July 1991, Mrs. Barton filed this lawsuit against the Red Cross and Dr. McGowan, who was the medical director for the Red Cross in Alabama at the time of Mrs. Barton's transfusion; she claimed that these two defendants were negligent and wanton in screening the donor's blood.² She amended her complaint to add claims for loss of consortium by her husband and loss of services by her sons.

In February or March 1992, the Bartons learned for the first time of the Red Cross's delay in informing Mrs. Barton of the blood donor's HIV-positive status. The Bartons amended their complaint to add claims of fraudulent suppression and the tort of outrage based on the delay.

B. Standard of Care

As the court has previously found, the Bartons' negligence claims are governed by the AMLA. Barton v. American Red Cross (Barton I), 804 F.Supp. 1455, 1457 (M.D.Ala.1992); cf. Bradway v. American National Red Cross, 992 F.2d 298, 300 (11th Cir.1993) (under Georgia law, action against Red Cross for negligent collection and supply of blood is governed by Georgia medical malpractice law). The AMLA provides that the "standard of care is that level of such reasonable care, skill and diligence as other similarly situated health care providers in the same general line of practice, ordinarily have and exercise in like cases." Ala.Code 1975 § 6-5-542(2). With this standard, the AMLA "establishes a relative standard of care for health care providers." § 6-5-548(e) (emphasis added). Thus, the Bartons must show that the actions of the Red Cross and Dr. McGowan were not in accordance with those of similarly situated blood collectors at the time of the challenged actions.

The Bartons contend that simply meeting a relative standard of care — that is, the level of care exercised by other health care providers — is insufficient when reasonable prudence dictates that stricter requirements should be met, even if no other health care providers meet those requirements. In support of their contention, however, the Bartons erroneously rely on negligence cases that are not based on the AMLA. See, e.g., The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.), cert. denied, 287 U.S. 662, 53 S.Ct. 220, 77 L.Ed. 571 (1932). Their contention is also contrary to the language of the AMLA and Alabama case law. The Alabama Supreme Court, in construing the 1975 version of the AMLA, held that the "legal duty imposed upon physicians is to exercise the degree of reasonable care, diligence, and skill that reasonably competent physicians in the national medical community would ordinarily exercise when acting in the same or similar circumstances." Bates v. Meyer, 565 So.2d 134, 136 (Ala.1990). Although the later, 1987 supplementary version of the AMLA, under which the Bartons bring their claims, has a new standard-of-care provision, § 6-5-542(2), the language is almost identical to the standard-of-care provision in § 6-5-484(a) of the 1975 version. The Bartons have not shown that the new provision altered the previous requirement that the standard of care be measured against that of the national medical community. In fact, the Alabama Supreme Court has continued to cite with approval cases construing the standard of care under the 1975 version. See, e.g., Brooks v. Goldhammer, 608 So.2d 394, 395 (Ala.1992) (citing Bates).

The Bartons argue that interpreting § 6-5-542(2) as requiring only a relative standard of care "would subject the section to severe constitutional attacks" under both the federal and Alabama constitutions but fail to assert that the statute is in fact unconstitutional. Nevertheless, the court will briefly address the Bartons' apparent constitutional contentions. The Bartons contend that § 6-5-542(2) violates the equal protection clause of the fourteenth amendment to the United States Constitution and the equal protection provisions of the Alabama Constitution of 1901, §§ 1, 6, and 22 of Article I. In Plitt v. Griggs, 585 So.2d 1317, 1324-25 (Ala.1991), the Alabama Supreme Court rejected a similar attack on the constitutionality of § 6-5-548, which sets out the burden of proof and defines who is a "similarly situated health care provider" within § 6-5-542(2)'s definition of the standard of care. Like the Bartons, the plaintiff in Plitt argued that, because the provisions of § 6-5-548 apply only to medical malpractice actions, the statute imposes a restriction on medical malpractice plaintiffs not imposed on other types of plaintiffs. Id. at 1324.

A statute, such as the AMLA's relative standard provision, that does not interfere with a fundamental right or discriminate against a suspect class will ordinarily survive an equal protection attack based on the federal constitution so long as the challenged classification is rationally related to a legitimate governmental purpose. See, e.g., Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457-58, 108 S.Ct. 2481, 2487, 101 L.Ed.2d 399 (1988). Applying the rational basis test to the equal protection challenge under the federal constitution, the court in Plitt found that § 6-5-548's establishment of a relative standard of care for health care providers is rationally related to a proper governmental purpose. 585 So.2d at 1324. Because this court agrees with Pl...