Hidy v. State of New York

• Decision Date: 19 January 1955
• Citation: 207 Misc. 207
• Parties: Dorothea G. Hidy, as Administratrix of The Estate of George A. Hidy, Deceased, Claimant,<BR>v.<BR>State of New York, Defendant. (Claim No. 30530.)
• Court: New York Court of Claims

207 Misc. 207

Dorothea G. Hidy, as Administratrix of The Estate of George A. Hidy, Deceased, Claimant,

v.State of New York, Defendant. (Claim No. 30530.)

January 19, 1955.

Salem G. Mansour for claimant.

Nathaniel L. Goldstein, Attorney-General (Donald C. Glenn of counsel), for defendant.

RYAN, J.

This suit is brought to recover damages for the conscious pain and suffering and for the death of George Arnold Hidy, a victim of homologous serum hepatitis, an infection which followed the administration to him of 500cc of unirradiated war-surplus pooled blood plasma. Hidy entered Niagara Falls Memorial Hospital on February 17, 1949, at 3:30 P.M. for the purpose of an orthopedic operation consisting of a bone graft on the cervical spine. The operation was begun at 8:20 A.M. on February 18th. During the course of the operation the injection of the plasma was given. Hidy recovered from the operation and was up and about when on May 17th he became violently ill. He died on May 23, 1949. The elapsed period of three months between the administration of the plasma and the death of the patient conforms to medical observation, experience and report. On February 18, 1949, there was available at the Niagara Falls Memorial Hospital an adequate blood bank, an adequate supply of universal "O" type blood and also a supply of irradiated commercial plasma. However, although Hidy was in the hospital for nearly fifteen hours prior to his operation, his blood was not typed or cross matched in preparation for the possible need of a blood transfusion during surgery.

The war-surplus pooled plasma administered to Hidy had reached Niagara Falls Memorial Hospital through distribution by the State of New York Department of Health pursuant to the authority of the Surplus Property Act of 1944 (U. S. Code, tit. 50, Appendix, § 1620, subd. [f]) and of chapter 279 of the Laws of 1945. (Public Health Law, § 20-i now § 3100, L. 1953, ch. 879.) There were 84 units so delivered to the Niagara Falls Hospital in 1946, 224 units in 1947, and 348 units in 1948. At least as early as August, 1947, the report of the committee on blood and blood derivatives of the American Red Cross had been sent to New York's Department of Health. This report was also published in the Journal of the American Medical Association on November 15, 1947. It warned that all practicing physicians should be reminded of the potential risk in the administration of pooled plasma and urged that its use be restricted to those instances, chiefly emergencies, when its use is clearly indicated and when safer ingredients such as whole blood or serum-albumin are not available. By April 1, 1949, the National Health Council made irradiation of plasma compulsory.

This is not the first instance of suit against the State of New York to recover damages for death consequent upon its undertaking of the distribution of pooled war-surplus plasma. Our conclusion of its nonliability in a particular case has been upheld on appeal. (Parker v. State of New York, 201 Misc. 416, affd. 280 App. Div. 157, motion for reargument or in the alternative leave to appeal to Court of Appeals denied 280 App. Div. 901, motion for leave to appeal denied 304 N.Y. 989.)

However, each case must be determined upon its own facts and we find distinctions herein which must be noted. To begin with Parker was admitted to a hospital at 2:45 in the morning having been found unconscious by a roadside in a state of shock following a concussion received in an automobile accident. Factually the case was decided on the element of emergency. Judge SYLVESTER said (Parker v. State of New York, supra, p. 420): "The vital importance of the time element lies in the fact that shock induces a failure of circulation and an inadequate supply of blood to the brain, heart and other vital organs so that if circulation is not promptly re-established, the patient dies. The attending physician must therefore balance the risk incident to the immediate use of plasma against the possibility of death due to shock while awaiting the availability of safer whole blood properly selected or `O' blood with Witebsky's Solution."

And he concluded: "Clearly, the State was not at fault because the physician in the Parker case decided, in his judgment, to administer plasma."

Mr. Justice BERGAN, writing for affirmance by a unanimous court observed that the record in the Parker case (p. 160) fully sustained the trial court's view: "that what is `available' in a serious emergency is a matter of time and judgment".

But here the situation is quite different. As we have already pointed out there was ample time between Hidy's admission to the hospital and the scheduled hour of his operation for preparations to have been made for the use of a safe and compatible blood product should necessity for transfusions or infusions arise. There was no emergency. Although, as in the Parker case, the physician who made the medical decision to use the plasma was not called to testify, we will not say, upon this different and distinguishable record, that sound medical judgment justified the inherent risk. However, neither the hospital, which ordinarily would not be liable for the physician's acts (Schloendorff v. Society of N. Y. Hosp., 211 N.Y. 125; Necolayff v. Genesee Hosp., 270 App. Div. 648, affd. 296 N.Y. 936), nor the physician himself is a defendant herein.

Wherein lies the responsibility of the State of New York? Arguments advanced herein that the State was remiss in failing to affix a warning label to the plasma...