Belle Bonfils Memorial Blood Center v. District Court In and For City and County of Denver

Decision Date17 October 1988
Docket NumberNo. 88SA45,88SA45
PartiesBELLE BONFILS MEMORIAL BLOOD CENTER, Petitioner, v. The DISTRICT COURT In and For the CITY AND COUNTY OF DENVER; The Honorable J. Stephen Phillips, one of the Judges thereof; and C.W. and K.W. individually and as next best friend of their son, R.W., Respondents.
CourtColorado Supreme Court

Breit, Best, Richman, and Bosch, P.C., John L. Breit, Susan Smith Fisher, Denver, for petitioner.

Peter Smith & Susan Young Law Offices, P.C. Peter M. Smith, Lakewood, for respondents C.W. and K.W.

Arnold & Porter, James J. Sandman, Bruce M. Chadwick, Denver, for amici curiae American Nat. Red Cross, American Ass'n of Blood Banks and Council of Community Blood Centers.

Thomas L. Roberts, JoAnne M. Zboyan, Englewood, for amicus curiae Colorado Hosp. Assn.

ERICKSON, Justice.

The petitioner, Belle Bonfils Memorial Blood Center, pursuant to C.A.R. 21, filed a petition to obtain a rule to show cause why the identities of volunteer blood donors, whose blood was transfused the respondent, K.W., should not be held confidential and privileged from discovery. We issued a rule to show cause and now make the rule absolute in part and discharge the rule in part.

I.

On February 28, 1985, K.W. gave birth to a son, R.W., at Mercy Medical Center in Denver. On March 22, 1985, K.W. was readmitted to the hospital for a postpartum hemorrhage. An emergency hysterectomy was performed, and in the course of her treatment, K.W. received four units of whole blood and two units of packed red blood cells supplied by Belle Bonfils Memorial Blood Center (Belle Bonfils). 1 One of the six units of blood K.W. received was contaminated with the AIDS virus. K.W. and her husband, C.W., filed suit against Belle Bonfils for negligent screening of the contaminated donor and negligent testing of the blood. 2 K.W. and C.W. allege that Belle Bonfils was negligent in screening donors and testing donated blood. K.W. and C.W. contend that when the laboratory test became available to indicate the presence of the AIDS virus, Belle Bonfils should have applied the test promptly. They further argue that when profiles of the high risk groups developed, Belle Bonfils should have specifically screened each donor as to the high risk profiles.

In April 1986, the donor of unit No. 4989MB, which had been received by K.W. on March 22, 1985, returned to Belle Bonfils to donate blood. The donor's blood was tested for antibodies to the HIV virus, 3 with a positive result. Belle Bonfils notified the hospitals which had received prior donations from the donor, and advised the hospitals to notify the physicians of the patients who had received the donor's blood so that the patients could be tested. As a result of these notifications, K.W. was tested for the HIV virus in August 1986. K.W. tested positive and filed this action against Belle Bonfils.

Respondents sought disclosure of the identities of each of the six donors whose blood she used, and production of all of the donors' records. Belle Bonfils objected to the requests for discovery, but by agreement provided copies of the front and back of each of the donor cards for the six units of blood received by K.W. Identifying information, consisting of name, address, business and home phone numbers, birthdate, social security number, "recognition," 4 and signature, was deleted from the produced cards. None of the medical history or health examination information was deleted from the cards. 5 Respondents also requested the donor cards relating to all prior donations of the one donor who subsequently tested positive for HIV antibodies. Those donor record cards were produced in a similar manner, with identifying information deleted. Only the infected donor's donor card is in the record that is before us.

Respondents subsequently filed a motion to compel discovery of the donors' identities and the complete donor record cards. On December 1, 1987, the trial court ordered Belle Bonfils to produce for K.W. and C.W. the unmasked donor card of the HIV-positive donor. The court's order expressly allowed the respondents to contact the donor and to attempt to determine his medical history. 6 The trial court also ordered respondents' attorney to keep the information strictly confidential, in the absence of a written order of the court. Disclosure of unmasked donor records of the other five donors was denied, but the trial court did not foreclose the possibility that such further discovery might be permitted at a later time.

II.

Before any information on AIDS was available in the medical community, Belle Bonfils utilized a screening and testing procedure on all potential donors. The purpose of the screening and testing procedure was to avoid accepting undesirable blood, and to protect the donor from injury in the process of giving blood. Donors were excluded on the basis of medical history, such as exposure to hepatitis or syphilis. Other grounds for either temporary or permanent deferment included a history of blood disease, tuberculosis, malaria, cancer, heart problems, epilepsy, unexplained weight loss, 7 or the taking of certain medications.

As of July 1982, Belle Bonfils donor screening criteria avoided accepting blood from some individuals at risk for AIDS. Belle Bonfils representatives attended a meeting in November 1982, of the American Association of Blood Banks and a meeting in December 1982, of the American Society of Hemotology. At both meetings, Belle Bonfils heard reports regarding an infant who acquired AIDS as a result of a tainted transfusion.

In late December 1982, Dr. Robert G. Chapman, the Director of Belle Bonfils, met with a member of Denver's Disease Control Services, and a representative of the Gay and Lesbian Community Center of Colorado. The purpose of the meeting was to discuss the best way to inform the gay community that male homosexuals should no longer donate blood. The Gay and Lesbian Community Center agreed to advise gay males not to donate blood. Belle Bonfils claims that it experienced "good cooperation" with the self-screening program.

In February or March, 1983, Belle Bonfils, in addition to its existing donor medical history interviewing procedure, implemented specific questioning of blood donors concerning the risks and symptoms of AIDS. The new screening procedures included informing donors about the risk factors for AIDS and the general symptoms of the illness. Donors were asked whether they had any symptoms of the disease, and if they were associated with any of the groups at risk, such as intravenous drug users or male homosexuals. Belle Bonfils admits that persons who answered any of these questions affirmatively were not to be accepted as blood donors.

Belle Bonfils revised its "Guidelines for Conducting a Blood Donor Medical History Interview" (guidelines) in December 1983. The guidelines set forth a twofold purpose: first, to insure that the donor could safely tolerate the removal of one pint of blood, and second, to avoid the possibility that the donated blood could transmit an infection to the recipient. The standards for determining when a potential donor should be deferred are set out in a Belle Bonfils directive to its donor technicians. Under a category entitled "Miscellaneous Deferments," the instructions provide: "AIDS--(acquired immune deficiency syndrome)--any donor with close exposure to persons with AIDS should be indefinitely deferred. Groups at highest risk are I.V. drug users, Haitian immigrants, homosexual males with multiple sexual contacts, and hemophilic patients with large numbers of transfusions." At the time the donor whose blood infected K.W. gave his donation in March 1985, each donor was asked to read an AIDS information sheet. The information sheet defined AIDS and listed the groups of society that are at risk. The instructions also state:

Because of this suggestion (that of carrying the AIDS virus), your blood bank is asking that you voluntarily refrain from donating blood at this time if you are in any of the groups listed above. Although the majority of members of these groups are not carriers, there is presently no good way to detect carriers and thus no means to identify those few who may be at risk.

The HIV virus was first identified in late 1983 or early 1984. In the fall of 1984, a laboratory began to presell test-kits for the AIDS virus to blood banks. The laboratory developed a commercially feasible test, known as the ELISA test. These kits were first licensed by the FDA on March 2, 1985. Belle Bonfils received its first shipment of the test kits on March 13, 1985. The blood donation that infected K.W. was given on the same day. After this action was commenced, Belle Bonfils asserted that the ELISA test was not available to test K.W.'s blood because the Bonfils' staff was being trained on the test procedures from March 13, 1985 to March 31, 1985. ELISA testing of all blood donations did not begin until April 1, 1985.

Thus, as of March 13, 1985, when the infected donor's blood was transfused, a four-part screening and testing process was employed by Bonfils. Potential donors were given the AIDS information sheet describing the risks of donating HIV positive blood. The donors were then asked thirty yes/no questions listed on the donor card, which were directed to their specific medical history. The responses on the card were then reviewed by a Belle Bonfils technician, who had been instructed to follow the guidelines in making the decision whether to accept blood from the potential donor. Thereafter, the donated blood was tested for hepatitis B, syphilis, and various antibodies, not including HIV. Belle Bonfils did not routinely screen for AIDS until approximately two weeks following the receipt of the blood that infected K.W.

III.
A.

One basic issue is presented by the plaintiffs' complaint: whether Bonfils was negligent in...

To continue reading

Request your trial
27 cases
  • Snyder v. Mekhjian
    • United States
    • New Jersey Supreme Court
    • July 31, 1991
    ...122 (W.D.La.1989); Mason v. Regional Medical Center of Hopkins County, 121 F.R.D. 300 (W.D.Ky.1988); Belle Bonfils Memorial Blood Center v. District Court, 763 P.2d 1003 (Colo.1988); Stenger v. Lehigh Valley Hosp. Center, 386 Pa.Super. 574, 563 A.2d 531 (1989), appeal granted, 525 Pa. 618-2......
  • Williams v. District Court, Second Judicial Dist., City and County of Denver
    • United States
    • Colorado Supreme Court
    • December 13, 1993
    ...However, the party opposing discovery has the burden of establishing the need for a protective order. Belle Bonfils Memorial Blood Center v. District Court, 763 P.2d 1003, 1010 (Colo.1988); Bond, 682 P.2d at 40; Leidholt, 619 P.2d at In this case, Williams' argument is two-fold. As discusse......
  • Arnold v. Am. Natl. Red Cross
    • United States
    • Ohio Court of Appeals
    • March 14, 1994
    ...734 S.W.2d 675; Gulf Coast Regional Blood Ctr. v. Houston (Tex.App.1988), 745 S.W.2d 557; and Belle Bonfils Mem. Blood Ctr. v. Dist. Ct. of Denver (Colo.1988), 763 P.2d 1003. Moreover, many of these cases further recognize that society's interest in maintaining a safe and adequate volunteer......
  • Marcella v. Brandywine Hosp.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 13, 1995
    ...244 N.J.Super. 281, 582 A.2d 307, 315 (A.D.1990), aff'd, 125 N.J. 328, 593 A.2d 318 (1991); Belle Bonfils Memorial Blood Ctr. v. District Court, 763 P.2d 1003 (Colo.1988) (en banc); Doe v. University of Cincinnati, 42 Ohio App.3d 227, 538 N.E.2d 419 (1988); Rasmussen v. South Florida Blood ......
  • Request a trial to view additional results
1 books & journal articles
  • Colorado's New Rules of Civil Procedure, Part Ii: Rediscovering Discovery
    • United States
    • Colorado Bar Association Colorado Lawyer No. 23-12, December 1994
    • Invalid date
    ...924 n.11 (May 1992). 12. But cf., Rule 121 § 1--13(f) with respect to audiotapes. 13. Belle Bonfils Mem. Blood Center v. District Ct., 763 P.2d 1003 (Colo.1988). 14. Colorado did not adopt a provision contained in new Federal Rule 32(e), which calls for the preferred use of non-stenographic......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT