Doe v. Greater New York Blood Program

• Decision Date: 28 July 1997
• Citation: 700 A.2d 377,304 N.J.Super. 287
• Parties: Jane DOE, an infant, through her guardians ad litem, Mr. John DOE and Mrs. Susan Doe, Plaintiff-Appellant, v. The GREATER NEW YORK BLOOD PROGRAM, a/k/a The New York Blood Center, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 287

304 N.J.Super. 287

700 A.2d 377

Jane DOE, an infant, through her guardians ad litem, Mr John DOE and Mrs. Susan Doe, Plaintiff-Appellant, v. The GREATER NEW YORK BLOOD PROGRAM, a/k/a The New York Blood Center, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued April 23, 1997.

Decided July 28, 1997.

George T. Baxter, Ridgewood, argued the cause for appellant.

Peter L. Korn, Springfield, argued the cause for respondent (McDonough, Korn, Eichhorn & Boyle, attorneys for respondent; Mr. Korn and Roger K. Solymosy, New York City, of counsel; Wilfred P. Coronato, Springfield, on the brief).

Before Judges LONG, A.A. RODRIGUEZ ¹ and CUFF.

The opinion of the court was delivered by

LONG, P.J.A.D.

Plaintiff, Jane Doe, instituted this action against defendant, the Greater New York Blood Program, after she acquired the human immunodeficiency virus (HIV) through a blood transfusion she received in February, 1982. During the course of the proceedings, plaintiff filed a motion to compel additional discovery and defendant filed a cross-motion for summary judgment. The trial judge granted summary judgment in favor of defendant and denied plaintiff further discovery. Plaintiff appeals.

The case arose when plaintiff was hospitalized at St. Joseph's Hospital and Medical Center shortly after her birth to correct certain congenital conditions. On February 2, 1982, when she was a little over a year old, she was transfused with red blood cells that had been collected, screened and supplied by defendant. The unit of red blood cells, number 1715513, had been collected by New Jersey Blood Services, a division of defendant, on January 25, 1982. The volunteer donor had donated blood to defendant on one prior occasion (August 12, 1981) and would donate on three subsequent occasions (February 2, 1983; August 10, 1983; and August 14, 1989).

It was not until nearly seven years after plaintiff's transfusion when the blood donor again donated blood that a screening revealed that the donor was HIV-positive. Defendant thereafter performed a "lookback" to notify recipients of this donor's blood, including plaintiff, that they had received blood from a donor who was currently HIV-positive. The 1989 blood donation was not hepatitis B positive.

The following is a precis of the expert evidence which is at the heart of this case. Plaintiff's expert, Dr. Donald Francis, a former Regional AIDS Consultant for the Centers for Disease Control (CDC), ² wrote in a February 8, 1996, certification that, as early as 1975, defendant's Lindsley Kimball Research Institute performed extensive studies, regarding hepatitis B and patterns of sexual behavior of homosexual men. Francis relied on a 1975 article, entitled On the Role of Sexual Behavior in the Spread of Hepatitis B Infection, 83 Annals of Internal Medicine 489-95 (1975). Francis related that defendant's scientists had concluded: "Our data would suggest that avoidance of rectal intercourse by homosexuals might substantially reduce the transmission of hepatitis B among them, and, due to the high risk of gonorrhea, syphilis, and hepatitis B in homosexuals, it would seem that they should be advised to refrain from blood donations." Francis opined that this data, reported by defendant's own research facility in 1975, should reasonably have caused defendant's management to advise homosexuals to refrain from blood donation. (Defendant does not concede that the donor in this case was homosexual, but states for the purposes of its brief, "it will be assumed arguendo that the donor was a homosexual.")

Plaintiff's experts also relied on three other medical reports published by the CDC in its Morbidity and Mortality Weekly Report (MMWR) which were circulated prior to the January, 1982 donation. The first report, Pneumocystis Pneumonia--Los Angeles, 30 MMWR 250 (June 5, 1981), had alerted the medical community that there were patients, all of whom were homosexual, with severe immunosuppression that resulted in pneumonia, and that there was an association between the homosexual lifestyle and the disease acquired through sexual contact. Transmission was thought to occur through seminal fluid.

The second report, Kaposi's Sarcoma and Pneumocystis Pneumonia Among Homosexual Men--New York City and California, 30 MMWR 305 (July 4, 1981), had indicated additional cases of cellular immunodeficiencies among homosexual men, the majority of whom were in New York. Francis emphasized that the article had "alerted the medical community of symptoms to look for in identifying this sexually transmitted disease including [ ] skin lesions, skin lesions plus lymphadenopathy, oral mucosal lesions, inguinal adenopathy plus perirectal abscess, weight loss and fevers." Francis added that this MMWR report advised the medical community that "[p]hysicians should be alert for Kaposi's sarcoma, PC pneumonia, and other opportunistic infections associated with immunosuppression in homosexual men." Thus, Francis concluded that this information should have been part of defendant's blood donor screening.

Francis also relied on a third report, Follow-Up on Kaposi's Sarcoma and Pneumocystis Pneumonia, 30 MMWR 409 (Aug. 28, 1981), where the CDC discussed further cases of Kaposi's sarcoma and pneumocystis pneumonia in New York City and California. The article advised the medical community that forty percent of the cases were fatal, and that it was predominantly a homosexual illness and sexually transmitted. Francis opined that this should have alerted defendant that homosexuals should be advised to refrain from donating blood and that defendant should have screened for the symptoms associated with the immunosuppression in homosexual men.

Francis stated that it was clear that the immunodeficiency disease was a "gay phenomenon" that was sexually transmitted and forty percent fatal. If it was sexually transmitted, then it was transmitted by blood, and certainly defendant should have known that it could have been transmitted from an infected homosexual to plaintiff. He concluded that defendant failed to act reasonably and appropriately in not advising homosexuals to refrain from donating blood. In addition, he opined that defendant did not act reasonably and prudently because it did not incorporate questions designed to identify the symptoms of an infected homosexual into its donor screening as set forth in the July, 1981 MMWR article.

Dr. Theodore A.W. Koerner, Assistant Medical Director at DeGowin Memorial Blood Center, University of Iowa Hospitals and Clinics, and an Associate Professor at the University of Iowa College of Medicine, stated in a February 6, 1996, certification for plaintiff that literature and studies by the time of plaintiff's transfusion "medically established that homosexuals should have been advised to refrain from donating blood because of the extraordinarily high risk of transmitting viral infections." Koerner explained: "These viral infections that were associated with the homosexual lifestyle included syphilis, gonorrhea, hepatitis, and immune deficiency viral infections, [were] originally called GRID, which stood for Gay Related Immune Deficiency Syndrome," which acronym was later changed to AIDS for Acquired Immune Deficiency Syndrome.

Koerner asserted that defendant should have known that its donor policy of including homosexuals exposed the recipients of these blood products to the danger of transmission of viral infections including GRID. Relying on the June 5, 1981, July 4, 1981 and August 28, 1981, reports in MMWR, Koerner concluded that homosexuals were shown to have an incidence of an immune deficiency syndrome acquired through sexual contact, and therefore also transmitted through blood, so defendant should have excluded homosexuals from its blood donation program or screened them for opportunistic infections. Koerner added that defendant had also been negligent for failing to provide a designated donor program for plaintiff.

Dr. Paul V. Holland, a physician licensed in New York, California, and Maryland, and Medical Director and Chief Executive Officer of the Sacramento Medical Foundation Blood Center, stated in a January 25, 1996, certification for defendant that, as of January and February, 1982, "the disease entity now known as AIDS was little understood and its potential for impact upon the safety of the blood supply was unknown." Holland opined that the standard of care for blood banking at that time could not, and did not, include any precautions addressed to AIDS as a disease or its potential for transmission by blood transfusion. Even as of the middle of 1982, there was still no evidence to establish that AIDS was caused by a transmissible agent and researchers had at least three theories to explain the then-new disease.

Holland stated that it was not until December 10, 1982, that the CDC published information in MMWR about the first case of possible transfusion-associated AIDS. Possible Transfusion--Associated Acquired Immune-Deficiency Syndrome (AIDS), 31 MMWR 652-54 (1982). According to Holland, on March 4, 1983, recommendations were issued by the Public Health Service in an Interagency Recommendation of the Food and Drug Administration (F.D.A.), the CDC, and the National Institutes of Health. The first F.D.A. recommendations regarding AIDS and blood banking were issued on March 24, 1983. Holland concluded: "In my opinion, within a reasonable degree of medical and blood banking certainty, there could not have been any departures from accepted standards of care or from the exercise of reasonable care which in any way contributed to plaintiff contracting HIV or eventually developing AIDS."

In a second certification dated March 26, 1996, Holland stated that, although Francis and Koerner maintained that defendant failed to act reasonably and appropriately by not advising homosexuals to refrain from donating blood and by not incorporating questions...