Doe v. American Nat. Red Cross, 91-C-897-C.

• Decision Date: 18 June 1992
• Docket Number: No. 91-C-897-C.,91-C-897-C.
• Citation: 796 F. Supp. 395
• Parties: John DOE and Jane Doe, Plaintiffs, v. The AMERICAN NATIONAL RED CROSS, a corporation, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

796 F. Supp. 395

John DOE and Jane Doe, Plaintiffs, v. The AMERICAN NATIONAL RED CROSS, a corporation, Defendant.

No. 91-C-897-C.

United States District Court, W.D. Wisconsin.

June 18, 1992.

Joseph D. Becker, Sauer, Becker, Flanagan & Lynch, La Crosse, Wis., for John and Jane Doe.

Donald K. Schott, Quarles & Brady, Madison, Wis., for The American Nat. Red Cross.

OPINION AND ORDER

CRABB, Chief Judge.

Plaintiffs brought this civil action against defendant on October 19, 1991, alleging, inter alia, that John Doe contracted the HIV virus as a result of defendant's negligence in screening blood donors and testing blood for use in transfusions. Presently before the court are cross motions for summary judgment on the issue whether plaintiffs' claims are barred by the statute of limitations. In the event the issue is decided in plaintiffs' favor, defendant wants the court to determine that its actions are governed by a professional standard of care, rather than by an ordinary standard of care.

Plaintiffs contend that this case is governed by Wis.Stat. § 893.54, the personal injury statute of limitations. If they are correct, their claims are not barred because they filed this case within three years of their discovery of the injury. Defendant contends that the case is governed by the shorter one-year medical malpractice statute of limitations, Wis.Stat. § 893.55, and that plaintiffs' claims are time-barred under this statute and would be time-barred under either Minnesota's medical malpractice statute of limitations if that state's law were held to be applicable.

I conclude that defendant provides professional health care to others through its collection, processing, and distribution of blood for ultimate use in blood transfusions. I conclude also that because defendant is a "health care provider," this case is governed by the Wisconsin medical malpractice statute of limitations, Wis.Stat. § 893.55, and that plaintiffs' claims are barred because they were not brought within the time provided for by that statute. It is unnecessary to resolve the choice of law and standard of care issues briefed by the parties.

To succeed on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2550, 91 L.Ed.2d 265 (1986); Indiana Grocery, Inc. v. Super Valu Stores, Inc., 864 F.2d 1409, 1412 (7th Cir.1989). When the moving party succeeds in showing the absence of a genuine issue as to any material fact, the opposing party must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991). Also, if a party fails to make a showing sufficient to establish the existence of an essential element on which that party will bear the burden of proof at trial, summary judgment for the opposing party is proper. Celotex, 477 U.S. at 322, 106 S.Ct. at 3552.

For the sole purpose of deciding this motion for summary judgment, I find from the parties' proposed findings of fact that the following material facts are undisputed.

UNDISPUTED FACTS

Background Facts

Plaintiffs John and Jane Doe are husband and wife and are adult citizens of the State of Wisconsin. Defendant American National Red Cross is a not for profit corporation organized and existing by an act of the Congress of the United States. It is a citizen of the District of Columbia, where its national headquarters and principal place of business are located.

Defendant operates a blood services region in St. Paul, Minnesota, referred to as St. Paul Regional Blood Services or St. Paul Region. As an unincorporated unit of the Red Cross, the St. Paul Region collects, processes and distributes blood from volunteer donors and supplies blood to hospitals for use in transfusions. The St. Paul Region is one of over fifty unincorporated blood services units of the American Red Cross.

Transfusion medicine includes the collecting, testing, processing and storing of human blood and blood components and the transfusing of blood to medical patients to treat disease and injury. Both the collection and the transfusion aspects of the profession require medical judgments based on specialized training and experience in order to minimize risks to transfusion recipients from such dangers as transmission of infectious diseases and incompatibility, both of which can cause severe medical reactions, including death.

Defendant promulgates policies and rules for its blood service regions, including the St. Paul Region. The policies and procedures, including those for donor screening and blood testing, were promulgated by the defendant's national headquarters and implemented by the St. Paul Region. The St. Paul Region promulgated policies and procedures required or permitted by the national policies and procedures. The St. Paul Region provides clinical services for medical patients, including therapeutic phlebotomy, the invasive procedure by which blood is drawn, and therapeutic apheresis.

Defendant is licensed by the Federal Drug Administration to engage in blood collection services. Defendant's Blood Services are licensed, regulated and inspected by the Center for Biologics Evaluations and Research of the Food and Drug Administration.

Federal regulations require that a qualified physician conduct or supervise virtually every step of blood banking. Defendant conducts its blood services activities, including screening volunteer blood donors and testing blood, through its professional medical employees, including physicians. Physicians, or persons acting under the supervision of physicians, determine whether prospective donors should donate blood by taking their medical histories and administering a limited physical examination, including examination of the donor's temperature, pulse, blood pressure, and hemoglobin count and of the donor's arms for evidence of intravenous drug use or infectious skin diseases. Blood is drawn by an invasive medical procedure known as phlebotomy.

Blood must be matched carefully for compatibility before it can be transfused into a patient to prevent rejection or other serious reactions in the recipient. In the process of screening blood donors and testing blood, therefore, blood services providers determine the blood type and other characteristics of each unit of blood in order to protect the health of patients who will receive the blood. Hospitals that receive blood from defendant rely on defendant's expertise in collecting, testing, and processing the blood.¹ Defendant provides blood to transfusing facilities without knowledge of the identity of transfusion recipients.

Facts Specific to this Case

On December 26-28, 1983, John Doe was hospitalized at St. Joseph's Hospital in Arcadia, Wisconsin, with gastrointestinal bleeding. On December 27, 1983, he received a transfusion of two units of packed blood cells, and on December 28, 1983, he received another transfusion of two units of packed blood cells. Blood identified as unit number 17M30013 was one of the units transfused into John Doe's body on December 28, 1983. This blood was collected by defendant's St. Paul Regional Blood Services on December 8, 1983.

On or about August 22, 1988, the St. Paul Chapter received a report by telephone from Richard Danilla of the Minnesota Department of Health that the donor of unit number 17M30013 had tested positive for HIV antibodies. On November 2, 1988, Robert J. Bowman, M.D., Medical Director of the American Red Cross, wrote a letter to John F. Peterson, M.D., of St. Joseph's Hospital, notifying him that the donor of unit number 17M30013 had tested positive for HIV and requesting that St. Joseph's Hospital determine who received that unit.

In response to the November 2, 1988 letter, St. Joseph's Hospital informed defendant in writing that unit number 17M30013 was transfused to plaintiff John Doe on December 28, 1983. Prior to St. Joseph's response, defendant did not know the name of the transfusion recipient.

On December 15, 1988, John Doe received a phone call from St. Joseph's Hospital and was informed that he may have received a contaminated unit of blood and that he should have his blood tested. On December 16, 1988, John Doe had his blood tested for HIV at the Mayo Clinic in Rochester, Minnesota, and was informed that same day that he tested HIV antibody positive. Jane Doe was notified on December 16, 1988, that her husband had tested positive for the HIV antibody.

Plaintiffs filed this action against defendant on October 18, 1991. Neither John nor Jane Doe asked defendant to provide health care to them.

OPINION

The threshold issue to be decided is whether plaintiffs' action is governed by the medical malpractice statute of limitations, Wis.Stat. § 893.55, or by the personal injury statute of limitations, Wis.Stat. § 893.54.² These statutes provide:

893.55. Limitation of actions; medical malpractice

(1) Except as provided by subs. (2) and (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of:

(a) Three years from the date of the injury, or

(b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.

893.54. Injury to the person The following actions shall be commenced within 3 years or be barred:

(1) An action to recover damages for injuries to the person.

Defendant...