Bradway v. American Nat. Red Cross

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Citation: 992 F.2d 298
• Docket Number: No. 91-8690,91-8690
• Parties: Carol B. BRADWAY, and David E. Bradway, Plaintiffs-Appellants, v. The AMERICAN NATIONAL RED CROSS, Defendant-Appellee.
• Decision Date: 28 May 1993

Page 298

992 F.2d 298 Carol B. BRADWAY, and David E. Bradway, Plaintiffs-Appellants,
v.
The AMERICAN NATIONAL RED CROSS, Defendant-Appellee. No. 91-8690. United States Court of Appeals,
Eleventh Circuit. May 28, 1993.

Page 299

George H. Connell, Jr., Parkerson, Shelfer and Connell, Decatur, GA, for plaintiffs-appellants.

Judith A. Powell, Kilpatrick and Cody, Atlanta, GA, Bruce M. Chadwick, Julia L. Erickson, Arnold and Porter, Edward L. Wolf, American Nat. Red Cross, Washington, DC, for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and RONEY, Senior Circuit Judge.

TJOFLAT, Chief Judge:

Carol and David Bradway appeal the district court's decision to dismiss their suit against the American National Red Cross as barred by the Georgia statute of ultimate repose for medical malpractice actions. Because the Georgia Supreme Court has determined that this suit is an action for medical malpractice, not an action for "ordinary" negligence, we affirm the dismissal.

I.

In April 1983, when she was twenty years old, Carol Bradway underwent reconstructive surgery for facial birth defects at the Emory University Hospital in Atlanta, Georgia. Mrs. Bradway received two units of whole blood by transfusion after surgery. The hospital obtained the blood from an American National Red Cross blood bank. The Red Cross had no direct contact with Mrs. Bradway.

In July 1988, Mrs. Bradway was admitted into a hospital after a diagnosis of pneumocystis. On July 19, 1988, Mrs. Bradway's doctor informed her that she had AIDS. On April 19, 1989, Mrs. Bradway and her husband David filed a complaint in Georgia state court alleging that Mrs. Bradway contracted AIDS during her 1983 transfusion. The Bradways sought compensatory damages, contending that the Red Cross was negligent in screening blood donors and in testing blood samples for the presence of HIV. They specifically asserted that the Red Cross, by not asking potential blood donors whether they were homosexuals, negligently failed to identify individuals possessing a high risk of being infected with the AIDS virus.

Pursuant to 28 U.S.C. §§ 1441, 1446 (1988), the Red Cross removed the Bradways' action to the United States District Court for the Northern District of Georgia.

Page 300

The Red Cross then moved the district court to dismiss the Bradways' action as barred by Georgia's statutes of limitation and ultimate repose for medical malpractice suits. See O.C.G.A. §§ 9-3-70, 71 (1982 & Supp.1992). ¹ The Bradways contended that the action was one for "ordinary" negligence, not medical malpractice. The district court concluded that under Georgia law "an action against a blood bank for the negligent collection and supply of human blood is an action for medical malpractice," and dismissed the case as barred by O.C.G.A. § 9-3-71.

The Bradways appealed this dismissal, arguing that the district court erred in classifying the case as a medical malpractice action rather than an "ordinary" negligence suit. Since this Court determined that the case turned on an unanswered question of Georgia law, we certified the following question to the Georgia Supreme Court:

IS A SUIT ALLEGING THAT A NOT-FOR-PROFIT BLOOD BANK WAS NEGLIGENT IN COLLECTING AND SUPPLYING HUMAN BLOOD--INCLUDING...