Doe v. American Red Cross Blood Services, S.C. Region

• Decision Date: 31 October 1988
• Docket Number: No. 22977,22977
• Citation: 377 S.E.2d 323,297 S.C. 430
• Court: South Carolina Supreme Court
• Parties: Jane DOE, Plaintiff-Appellant, v. AMERICAN RED CROSS BLOOD SERVICES, S.C. REGION, Defendant-Appellee. John DOE, Plaintiff-Appellant, v. AMERICAN RED CROSS BLOOD SERVICES, S.C. REGION, Defendant-Appellee. . Heard

Page 323

377 S.E.2d 323

297 S.C. 430

Jane DOE, Plaintiff-Appellant, v. AMERICAN RED CROSS BLOOD SERVICES, S.C. REGION, Defendant-Appellee.

John DOE, Plaintiff-Appellant, v. AMERICAN RED CROSS BLOOD SERVICES, S.C. REGION, Defendant-Appellee.

No. 22977.

Supreme Court of South Carolina.

Heard Oct. 31, 1988.

Decided Feb. 21, 1989.

Charles L. Henshaw, Jr., of Law Offices of O. Fayrell Furr, Jr., P.A., and Benjamin M. Mabry, of Cromer & Mabry, Columbia, for plaintiffs-appellants.

David E. Dukes and Stephen G. Morrison, of Nelson, Mullins, Riley & Scarborough, Columbia; Bruce M. Chadwick and Edward L. Wolf, of Arnold & Porter, Washington, D.C., for defendant-appellee. of counsel: Karen Shoos Lipton, of American Red Cross, Washington, D.C.

Harold W. Jacobs, of Nexsen, Pruet, Jacobs & Pollard, Columbia, and David E. Willett, of Hassard, Bonnington, Rogers & Huber, San Francisco, Cal., amicus curiae for American Association of Blood Banks.

Heyward E. McDonald, of McDonald, McKenzie, Fuller, Rubin and Miller, Columbia, amicus curiae for United Way of South Carolina and United Way of the Midlands.

Steven Labensky and Janet Napolitano, of Lewis and Roca, Phoenix, Ariz., and Donald V. Richardson, II, of Richardson, Plowden, Grier and Howser, Columbia, amicus curiae for Council of Community Blood Centers.

Jeter E. Rhodes, Jr., of Whaley, McCutchen, Blanton & Rhodes, Columbia, amicus curiae for South Carolina Medical Ass'n.

PER CURIAM:

Pursuant to Supreme Court Rule 46, we agreed to answer four questions certified by the Honorable Clyde H. Hamilton, United States District Court for the District of South Carolina. The questions presented to this court by Judge Hamilton are as follows:

(1) Does South Carolina recognize a separate standard of care for professionals under which generally recognized and accepted practices in the profession constitute the standard of care owed by a member of that profession?

(2) If South Carolina recognizes a "professional negligence standard," would it apply to blood banks such as the Red Cross?

(3) Does S.C.Code Ann. § 33-55-210 (1987) violate the equal protection clause of the United States or the South Carolina Constitution?

(4) If S.C.Code Ann. § 33-55-210 (1987) is constitutional in its entirety or in relevant part, how is the employee of a charitable organization "adjudged" to have acted recklessly, wantonly, or grossly negligent as that term is used in S.C.Code Ann. § 33-55-220 (1987)?

FACTS

On January 9, 1985, the plaintiff, Jane Doe, underwent spleen and gall bladder surgery at Lexington County Hospital. During her operation, she was given a unit of blood apparently containing the human immunodeficiency virus ("HIV"), which causes the fatal acquired immune deficiency syndrome, commonly known as AIDS. The American Red Cross Blood Services, South Carolina Region, collected the infected blood from a volunteer donor on January 4, 1985. At the time the blood was collected, a direct test for AIDS was not available. Four months after the transfusion, a direct test for AIDS was developed. Doe contends, however, that Red Cross was negligent in failing to employ a surrogate test before January of 1985 to identify and exclude blood donors who were at high risk for transmitting AIDS.

Doe concedes that the generally recognized and accepted practice among blood banks nationwide in January of 1985 was not to use surrogate tests to screen out donors at high risk for spreading AIDS. Red Cross moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the basis that professionals cannot be negligent when their acts or omissions are consistent with generally recognized and accepted professional practices. As a professional service, Red Cross contends that they are entitled to summary judgment.

I. Professional Standard of Care

Although this court has not explicitly announced a rule setting forth a separate standard of care for professionals, we have implicitly considered and accepted such a standard in several cases. For instance, in 1979, in Kemmerlin v. Wingate, 274 S.C. 62, 261 S.E.2d 50 (1981), Justice Ness, writing for the majority, noted that as a professional, an accountant was held to the standard of care of other accountants. 261 S.E.2d at 51. There, we affirmed the involuntary nonsuit rendered against the plaintiff because he failed to present any evidence tending to show the standard of care applicable to professional accountants or any damages proximately caused by the accountants' acts or omissions.

In King v. Williams, 276 S.C. 478, 279 S.E.2d 618, 620 (1981), this court abolished the "locality rule" which adjudged a physician's skills against those of other physicians in his community, and adopted a professional standard of care not bound by any geographical restrictions. We articulated the standard of care which must be observed by a physician as "that of an average, competent practitioner acting in the same or similar circumstances." 279 S.E.2d at 620.

We approved a judge's instruction to a jury in a medical malpractice case concerning the standard of care for a physician in Cox v. Lund, 286 S.C. 410, 334 S.E.2d 116 (1985). There, the trial judge instructed that to reach a verdict against the doctor for malpractice, the jury would have to find "by the greater weight of the evidence that the physician did not possess the degree of skill common to other doctors, or that he failed or was negligent in so exercising such skills in the treatment of a patient." 334 S.E.2d at 119. The trial judge further charged that in a malpractice case, the negligence was "the failure to do that which an ordinary, careful and prudent physician or surgeon would do under the circumstances shown by the evidence to have existed at the time of the transaction in question, or, it [was] the doing of that which an ordinary, careful and prudent physician or surgeon would not have done under the same circumstances." 334 S.E.2d at 119. Thus, we again impliedly recognized a separate standard of care for physicians.

Our court of appeals also had occasion to address the issue of a professional standard of care in Welch v. Whitaker, 282 S.C. 251, 317 S.E.2d 758 (Ct.App.1984). In Welch, the court of appeals affirmed the trial court's directed verdict in favor of the ophthalmologist because the plaintiff presented no expert medical testimony that the ophthalmologist deviated from the "recognized standard among ophthalmologists." 317 S.E.2d at 762. The court applied the professional standard in Welch specifically to the scope of a physician's duty to disclose information, but generally to the negligence cause of action.

Again, in Folkens v. Hunt, 290 S.C. 194, 348 S.E.2d 839, 843 (Ct.App.1986), the court of appeals analyzed the standard of care for a professional in a malpractice action. The court stated that "a public accountant who fails to perform in accordance with accepted professional standards may be liable in tort to his client for his negligence." 348 S.E.2d at 842. The court further expounded on the standard of care and competence of public accountants by explaining that accountants must "render their services with that degree of skill, care, knowledge and judgment usually possessed and exercised by members of that profession ... in accordance with accepted professional standards and in good faith without fraud or collusion." 348 S.E.2d at 843. See also, Bonaparte v. Floyd, 291 S.C. 427, 354 S.E.2d 40, 45 (Ct.App.1987). (To recover for medical malpractice, a plaintiff must show failure by a physician to exercise that degree of care and skill which is ordinarily employed by the profession under similar conditions and in like circumstances.)

Although our courts have previously recognized the professional standard of care, this court has not heretofore set forth with precision the standard of care to be used to measure the conduct of professionals. We now hold that in a professional negligence cause of action, the standard of care that the plaintiff must prove is that the professional failed to conform to the generally recognized and accepted practices in his profession. If the plaintiff is unable to demonstrate that the professional failed to conform to the generally recognized and accepted practices in his profession, then the professional cannot be found liable as a matter of law. In setting forth such a standard, we defer to the collective wisdom of a profession, such as physicians, dentists, ophthalmologists, accountants and any other profession which furnishes skilled services for compensation. See, Kemmerlin v. Wingate, 274 S.C. 62, 261 S.E.2d 50 (1981). Establishing such a standard which measures conduct of a professional against other professionals is rooted, as Professor Prosser commented, in this court's "healthy respect ... for the learning of a fellow profession, and [our] reluctance to overburden it with liability based on uneducated judgment." Prosser and Keeton, Law of Torts, § 32, p. 189 (5th ed. 1984).

II. Transfusion of Blood as a Professional Service

Having concluded that South Carolina recognizes a professional standard of care, we must next decide whether the collection and processing of blood for transfusion is a medical service.

We acknowledged in Samson v. Greenville Hospital System, 95 S.C. 359, 368 S.E.2d 665 (1988) that Section 44-43-19 reflected a legislative intent to ... characterize the transfusion of blood as a medical service. 368 S.E.2d at 667. Since the transfusion of blood is characterized as a skilled medical service, then we hold that the Red Cross, as a blood collector and processor, should be treated as a professional. Thus, in order to maintain her action for negligence, Doe must prove that the Red Cross failed to conform to the generally recognized and accepted practices in its profession.

We find ample support for our holding in other jurisdictions. See, Shelby v. St. Luke's Episcopal Hospital, Civ. Action No. H-86-3780 (S.D...