Canas v. Al-Jabi, No. A06A1337.

• Citation: 282 Ga. App. 764,639 S.E.2d 494
• Decision Date: 20 November 2006
• Docket Number: No. A06A1339.,No. A06A1341.,No. A06A1337.,No. A06A1338.,No. A06A1340.
• Parties: CANAS v. AL-JABI et al. Kaminer v. Canas. Al-Jabi v. Canas. Board of Regents of the University System of Georgia v. Canas. MCG Health, Inc. v. Canas.
• Court: United States Court of Appeals (Georgia)

282 Ga. App. 764

639 S.E.2d 494

CANAS v. AL-JABI et al.

Kaminer v. Canas.

Al-Jabi v. Canas.

Board of Regents of the University System of Georgia v. Canas.

MCG Health, Inc. v. Canas.

No. A06A1337.

No. A06A1338.

No. A06A1339.

No. A06A1340.

No. A06A1341.

Court of Appeals of Georgia.

November 20, 2006.

Reconsideration Denied December 8, 2006.

William L. Ballard, Scherffius, Ballard, Still & Ayres, J. Robert Persons, Carter & Ansley, Atlanta, for Canas.

Leslie P. Sheehan, William P. Franklin, Jr., Oliver, Maner & Gray, Savannah, for Al-Jabi et al.

Adam L. Appel, Kim M. Ruder, Carlock, Copeland, Semler & Stair, for Kaminer.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Bryan F. Dorsey, for Board of Regents of the University System of Georgia.

James S. V. Weston, Hull, Towill, Norman, Barrett & Salley, for MCG Health, Inc.

ELLINGTON, Judge.

After a hearing, the Superior Court of Glynn County granted in part and denied in part motions for summary judgment filed in Derek Canas's action against Ayman Al-Jabi, M.D., Sharon J. Kaminer, M.D., the Board of Regents of the University System of Georgia d/b/a Medical College of Georgia Hospitals and Clinics ("the Board"), and MCG Health, Inc. ("MCGHI").¹ The trial court granted summary judgment in favor of the defendants below "on all claims for medical malpractice where the alleged negligent or wrongful act or omission occurred more than 5 years before the date on which this action was brought" and denied the motions on all other medical malpractice claims. In the same order, the trial court also denied the defendants' various motions to disqualify Canas's expert witnesses.

In Case No. A06A1337, Canas appeals the partial grant of summary judgment. Canas's direct appeal allowed the defendants to file cross-appeals of the trial court's interlocutory and evidentiary rulings.² In Case No. A06A1338, Kaminer appeals the partial denial of summary judgment and the order denying the motions to disqualify Canas's expert witnesses. In Case No. A06A1339, Al-Jabi appeals the partial denial of summary judgment. In Case No. A06A1340, the Board appeals the partial denial of summary judgment and the order denying the motions to disqualify Canas's expert witnesses. In Case No. A06A1341, MCGHI appeals the partial denial of summary judgment.³ For the reasons that follow, we affirm.

Viewed in the light most favorable to Canas,⁴ the record reveals the following facts.⁵ At his birth on November 1, 1984, Canas had a rare and serious heart defect, transposition of the great arteries with total anomalous pulmonary venous return. Two months later, surgeons at the Medical College of Georgia Hospital performed surgery to correct the defect. During and after the surgery Canas received multiple transfusions of whole blood and blood products. Before he was discharged from the hospital after the initial surgery, Canas's blood tests showed anomalies which could indicate a problem with his immune system. Also before he was discharged, Canas developed a complication which required the implantation of a pacemaker. Because of his heart surgery and pacemaker, Canas required ongoing cardiology care, including regular monitoring of the pacemaker's performance and periodic modification and replacement of the pacemaker and its components.

At the time of Canas's initial surgery, in January 1985, the medical community was aware that blood from HIV-infected donors had entered the collected blood supply. With no artificial substitute for blood, however, health care providers often had no alternative to transfusing patients with potentially contaminated blood and blood products. Not long after Canas's surgery, an HIV screening test for blood donors became available. In March 1985, just two weeks after Canas was discharged, the hospital stopped using untested blood for transfusions.

On March 20, 1987, two years after Canas's initial surgery and the hospital's subsequent decision not to transfuse patients with untested blood, the United States Department of Health and Human Services, Centers for Disease Control ("CDC"), issued a Morbidity and Mortality Weekly Report ("MMWR") which stated:

Blood banking organizations in the United States have begun "look-back" programs to identify previous recipients of blood from donors who tested positive for HIV antibody after screening began. In one region, 70% of recipients identified through such a program had HIV antibody. However, look-back programs cannot identify all infected transfusion recipients because many infected donors may have refrained from donating or become too ill to continue to donate after HIV serologic testing of donors began.

Because "HIV-infected persons are at risk for developing AIDS or related conditions themselves and may transmit infection to others," the MMWR urged doctors to "consider offering HIV antibody testing to some patients who received transfusions between 1978 and late spring of 1985." On April 30, 1987, the CDC issued comprehensive guidelines for HIV antibody counseling and testing which formalized the recommendation about counseling transfusion recipients, as follows:

Patients being evaluated for signs and symptoms of illness should be counseled about the diagnostic utility of HIV antibody tests, and testing should be recommended when it is judged to be clinically appropriate for diagnosis or to assist in patient management decisions....

Selected patients who received transfusions of blood or blood components between early 1978 and mid 1985 should be counseled about the potential risk of HIV infection and should be offered antibody testing.... The decision by a physician to recommend counseling and HIV antibody testing to a person who has received transfusions should be based on the likelihood of infection in the recipient and the likelihood of subsequent transmission from that person to others. The risk of infection is greatest for persons who received large numbers of units of components and from blood collected in an area with a high incidence of AIDS during the few years before screening was initiated.

The American Association of Blood Banks ("AABB") and the American Red Cross publicly supported the CDC's position.

On June 24, 1988, the Presidential Commission on the Human Immunodeficiency Virus Epidemic issued its report, which recommended that "[a]s soon as is practically possible, but no later than July 1, 1989, agencies which license and certify health care facilities should make a condition for licensure a program to notify all recipients of blood or blood products since 1977 of their possible exposure to HIV." In June 1989, the Technical Advisory Task Force on Blood Resources of the American Hospital Association ("AHA") issued a report to its members titled, "Blood Issues Update re: Minimizing the Risk of Transfusion-Associated HIV Infection." In that report, the AHA questioned whether a nationwide individual notification program for all transfusion recipients would address the Presidential Commission's concerns. The AHA estimated that such a program would cost hospitals $900 million to $2 billion to trace and notify approximately 30 million recipients. The AHA suggested the following "legal considerations":

At this point, it is far from clear that hospitals which decline to institute notification programs necessarily would be held liable to or for recipients ultimately discovered to be infected....

Hospitals electing to adopt or participate in a recipient notification program would not necessarily thereby increase their liability to HIV-infected recipients. On the other hand, however, individual or public communication of transfusion risk-related information could tend to increase the likelihood of suit or to advance the time of filing by recipients who learn during the program that they are HIV-infected.... Although it is by no means clear at this time that hospitals have a legal "duty to warn" prior transfusion recipients (either generally or individually), ... [h]ospitals voluntarily choosing to assume responsibility for transmitting transfusion-related information likely would be held to a "reasonableness" standard. In other words, having instituted notification efforts, such hospitals presumably could be held liable for failure to exercise "due care" or make "prudent efforts" to design and implement a well thought-out program with a reasonable chance of meeting its objectives.

In this case, the Board did not implement a universal patient notification or "recall" program as recommended by the Presidential Commission; instead, it implemented a "donor look-back" program. In that program, if the hospital discovered that a past blood donor was HIV positive, then the hospital would identify all patients who had received that donor's blood or blood products and notify those patients of their possible exposure to HIV. There is no evidence the hospital ever learned that any of Canas's blood donors had been HIV positive. The hospital never contacted Canas or his family to notify them of Canas's possible exposure to HIV through the transfusions he received in January and February 1985.

In May 1991, when Canas was six years old, Kaminer, a pediatric cardiologist and Board employee, began providing his pediatric cardiology care at the hospital. By that time, Canas displayed numerous signs and symptoms consistent with HIV infection and pediatric AIDS, including stunted growth, severe dental caries which required ten tooth extractions in December 1990, herpetic gingivostomatitis (a viral gum disease), recurrent pneumonia, swollen lymph nodes, and repeated viral illnesses of obscure and undiagnosed etiology. When Kaminer began treating Canas, he measured 42.8 inches tall and weighed 37.3 pounds, in the lowest 5th percentile for boys his age.

In May 1993, when Canas was eight years old, Al-Jabi began providing his general pediatric medical care. Canas continued to display...