Howell v. Spokane & Inland Empire Blood Bank

• Decision Date: 01 February 1990
• Docket Number: No. 55692-0,55692-0
• Citation: 114 Wn.2d 42,785 P.2d 815
• Court: Washington Supreme Court
• Parties: , 10 UCC Rep.Serv.2d 1186, Prod.Liab.Rep. (CCH) P 12,417 Virgil T. HOWELL and Geraldine Howell, husband and wife, Appellants, v. SPOKANE & INLAND EMPIRE BLOOD BANK, a Washington corporation; Alan R. Danielson, M.D. and Jane Doe Danielson, husband and wife; Orthopedic Associates of Spokane, Inc., P.S., a Washington corporation; Deaconess Medical Center, a Washington corporation; and John Doe X and Jane Doe X, husband and wife, Respondents.

Page 42

114 Wn.2d 42

785 P.2d 815, 10 UCC Rep.Serv.2d 1186,

Prod.Liab.Rep. (CCH) P 12,417

Virgil T. HOWELL and Geraldine Howell, husband and wife, Appellants, v. SPOKANE & INLAND EMPIRE BLOOD BANK, a Washington corporation; Alan R. Danielson, M.D. and Jane Doe Danielson, husband and wife; Orthopedic Associates of Spokane, Inc., P.S., a Washington corporation; Deaconess Medical Center, a Washington corporation; and John Doe X and Jane Doe X, husband and wife, Respondents.

No. 55692-0.

Supreme Court of Washington En Banc.

Feb. 1, 1990.

As Amended Feb. 14, 1990.

John Lynch, Spokane, for appellants.

Randall & Danskin, P.S., Michael J. Myers, Keith D. Brown, Etter & McMahon, P.S., Stephen M. Lamberson, William F. Etter, Spokane, for respondents.

DOLLIVER, Justice.

In early October 1984, plaintiff Virgil T. Howell was admitted to defendant Deaconess Medical Center for elective knee surgery. Following the surgery, plaintiff's surgeon ordered two units of packed red blood cells be administered to plaintiff. The blood, provided by defendant Spokane & Inland Empire Blood Bank (SIEBB), was transfused into plaintiff on October 8, 1984. The blood had been donated to the SIEBB during the fall of 1984 by volunteer donor John Doe X. One of these units of blood is alleged to have contained the Human Immuno Deficiency Virus (HIV). HIV is associated with the development of Acquired Immune Deficiency Syndrome (AIDS). Plaintiffs allege that prior to the surgery there was no appraisal given by the defendants of the potential risk of exposure to HIV via blood transfusions. Plaintiffs also allege the defendants failed to inform plaintiff of the procedure, available to elective surgery patients, for storing the patient's own blood for later transfusion.

After recovery from surgery, plaintiff Virgil Howell, a lifetime blood donor, continued to donate blood to the SIEBB. Following a donation, the SIEBB learned, in November 1985, that plaintiff tested positive for HIV. Plaintiff was not informed of this exposure until October 1986.

Plaintiffs Virgil Howell and his wife Geraldine Howell brought an action in the Superior Court for Spokane County pleading 12 causes of action against various defendants, including the SIEBB and Deaconess. The causes of action pleaded against both the SIEBB and Deaconess were negligence, res ipsa loquitur, negligent infliction of emotional distress, violation of the Consumer Protection Act (RCW 19.86), strict liability, breach of express and implied warranty, and loss of consortium. The plaintiffs also alleged a lack of informed consent against Deaconess and negligence per se, outrage, and fraudulent concealment and nondisclosure against the SIEBB.

Pursuant to motions for summary judgment brought by defendants SIEBB and Deaconess, the trial court entered orders granting partial summary judgment in favor of defendants. Partial summary judgment was ordered in favor of the SIEBB regarding strict liability, express and implied warranty, and violation of the Consumer Protection Act. Partial summary judgment in favor of Deaconess was ordered regarding strict liability, express and implied warranty, violation of the Consumer Protection Act, lack of informed consent, negligence per se, outrage, and res ipsa loquitur. Plaintiffs' motions for reconsideration were denied.

Plaintiffs brought a motion for pretrial review of the orders granting partial summary judgment pursuant to RAP 2.2(d) and RAP 4.2. We found the trial court's orders were not appealable, but granted discretionary review under RAP 2.3. We affirm in part and reverse in part.

At the outset, we reverse the trial court's dismissal of the claims of outrage and negligence per se against Deaconess. Plaintiffs did not allege these claims against Deaconess, although they were alleged against the SIEBB and other defendants who are not parties to this appeal. We also dispose of plaintiffs' challenge to the trial court's dismissal of their express warranty claims against the SIEBB and Deaconess. Plaintiffs made this challenge in their assignments of error, however, plaintiffs did not support this issue with argument either in their opening brief or their reply brief. If a party fails to support assignments of error with legal arguments, they will not be considered by this court. Cyrus v. Martin, 64 Wash.2d 810, 813, 394 P.2d 369 (1964).

Four issues remain. The first is whether plaintiffs' claims of strict liability and implied warranty against the SIEBB and Deaconess were properly dismissed by the trial court. Initially, we must determine whether the 1985 amendment to RCW 70.54.120 applies retroactively to bar these claims based upon a blood transfusion occurring before the amendment was enacted. After June 10, 1971 and prior to the effective date of the 1985 amendment, RCW 70.54.120 provided:

The procurement, processing, storage, distribution, administration, or use of whole blood, plasma, blood products and blood derivatives for the purpose of injecting or transfusing the same, or any of them, into the human body is declared to be, for all purposes whatsoever, the rendition of a service by each and every person, firm, or corporation participating therein, and is declared not to be covered by any implied warranty under the Uniform Commercial Code, Title 62A RCW, or otherwise, and no civil liability shall be incurred as a result of any such acts, except in the case of wilful or negligent conduct: Provided, however, That this section shall apply only to liability alleged in the contraction of hepatitis and malaria and shall not apply to any transaction in which the blood donor receives compensation: ... Provided further, That nothing in this section shall be considered by the courts in determining or applying the law to any blood transfusion occurring before June 10, 1971 and the court shall decide such case as though this section had not been passed.

See Laws of 1971, ch. 56, § 1, p. 131. On May 16, 1985, the Governor approved legislation amending the first proviso of the statute to include "acquired immune deficiency disease" after malaria as one of the diseases to which the statute is applicable. Laws of 1985, ch. 321, § 1, p. 1103.

Statutory enactments are presumed to be prospective unless there is a legislative intent to apply the statute retroactively or the statute is remedial and retroactive application furthers the remedial purpose. Ferndale v. Friberg, 107 Wash.2d 602, 732 P.2d 143 (1987). Remedial statutes are those involving practice, procedure, or remedies and not affecting contractual or vested rights. See Daggs v. Seattle, 110 Wash.2d 49, 750 P.2d 626 (1988); Godfrey v. State, 84 Wash.2d 959, 530 P.2d 630 (1975). Statutory amendments are also presumed to be prospective unless there is a legislative intent to the contrary or the amendment is clearly curative. Johnson v. Continental West, Inc., 99 Wash.2d 555, 663 P.2d 482 (1983); Painting & Decorating Contractors of Am., Inc. v. Ellensburg Sch. Dist., 96 Wash.2d 806, 638 P.2d 1220 (1982). In determining legislative intent, this court may look to the express language of the statute, the purpose of the statute, and a legislative statement of strong public policy that would be served by retroactive application. Ferndale v. Friberg, supra, 107 Wash.2d at 605, 732 P.2d 143; In re Marriage of MacDonald, 104 Wash.2d 745, 748, 709 P.2d 1196 (1985).

Because we find RCW 70.54.120 and its 1985 amendment are not remedial or curative in nature, a contrary legislative intent must be found to defeat the presumption for prospective application.

The express language of this statute indicates an intent for retroactive application. RCW 70.54.120 clearly states the statute will be deemed to be effective prospectively from June 10, 1971. See RCW 70.54.120. The legislative retention of the specific June 10, 1971 date in the statute after an amendment evidences a legislative intent of immunity for transfusions after that date which resulted in AIDS. The purpose of the statute and its legislative history also advocate a retroactive application. The purpose behind Washington's blood shield statute is to encourage a readily available supply of blood and blood products. See Garvey v. St. Elizabeth Hosp., 103 Wash.2d 756, 759, 697 P.2d 248 (1985). This public policy accords with the general policy of the 48 states which have enacted blood shield statutes. See Samson v. Greenville Hosp. Sys., 295 S.C. 359, 363, 368 S.E.2d 665 (1988). The original bill later codified in RCW 70.54.120 was first introduced in the House in 1971. See House Journal, 42d Legislature (1971), at 83. The original bill was a general statute of immunity with no language limiting its application to hepatitis and malaria. See House Journal, 42d Legislature (1971), at 83, 285; Senate Journal, 42d Legislature (1971), at 550.

Senator Gissberg, the Chairman of the Senate Judiciary Committee, explained the reason the House and Senate Judiciary Committees recommended restricting the application of the Washington statute to hepatitis and malaria.

Those two diseases [hepatitis and malaria], we learned, are such that there is no way that you can tell from an examination of the blood whether or not it is infected with hepatitis or malaria. As a consequence, the bill now reads that the implied warranty doctrine is abolished only for the two situations that I just mentioned, hepatitis and malaria. The applicability of the act then only applies to malaria and hepatitis.

Senate Journal, 42d Legislature (1971), at 550. The statute was enacted and codified in RCW 70.54.120. The legislative history of the 1985 amendment does not address the reasons why the Legislature sought to include AIDS in the application of RCW 70.54.120. However, the medical research and information known about AIDS prior to May 1985, when the act passed the House and Senate, is instructive as to its inclusion.

In June and July 1981, the first few cases of AIDS were...