Johnson v. American National Red Cross

• Court: Georgia Supreme Court
• Writing for the Court: HINES, Justice.
• Citation: Johnson v. American National Red Cross, 578 S.E.2d 106, 276 Ga. 270 (Ga. 2003)
• Decision Date: 24 February 2003
• Docket Number: No. S02G0871.,S02G0871.
• Parties: JOHNSON v. AMERICAN NATIONAL RED CROSS a/k/a American Red Cross.

578 S.E.2d 106

276 Ga. 270

JOHNSON v. AMERICAN NATIONAL RED CROSS a/k/a American Red Cross.

No. S02G0871.

Supreme Court of Georgia.

February 24, 2003.

Bird & Associates, Wendell R. Bird, Richard L. Brittain, Atlanta, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Alan M. Maxwell, Christopher H. Smith, Nelson, Mullins, Riley & Scarborough, Jeffrey C. Baxter, McMillian & Camp, Lance P. McMillian, Newnan, for appellee.

HINES, Justice.

We granted certiorari to the Court of Appeals in Johnson v. American Nat. Red Cross, 253 Ga.App. 587, 569 S.E.2d 242 (2002), to consider whether it erred in applying McAllister v. American Nat. Red Cross, 240 Ga. 246, 240 S.E.2d 247 (1977), and Russaw v. Martin, 221 Ga.App. 683, 472 S.E.2d 508 (1996), to bar negligence claims against the defendant American National Red Cross a/k/a American Red Cross ("Red Cross"). The suit arose from the Red Cross's acceptance of blood from a donor who had lived in a region in Africa where a rare and undetectable strain of human immunodeficiency virus ("HIV") was known to exist and the subsequent transfusion of such blood. For the reasons which follow, we affirm the judgment of the Court of Appeals upholding the grant of summary judgment to the Red Cross on the negligence claims.

The following facts giving rise to this suit are detailed in the opinion of the Court of Appeals. Prior to her death at age 75, Bernice Mantooth suffered from multiple serious medical conditions including emphysema, anemia, angina, breast cancer, heart disease, lung cancer, asthmatic bronchitis, diabetes, kidney failure, and pneumonia. On August 29, 1998, Mantooth went to the Cartersville Medical Center ("CMC") emergency room complaining of chest pain and shortness of breath. She was examined by Dr. David Kim, who was on-call for her personal physician, Dr. Sam Howell, and she was diagnosed with exacerbation of emphysema.

Dr. Kim ordered that Mantooth receive two units of blood. Fifteen minutes after the transfusion began, Mantooth complained of severe pain in the left side of her chest that radiated down her left shoulder and arm and into her back. Mantooth was transferred to the intensive care unit, where she was treated for asthma, congestive heart failure, and chest pain. After she was stabilized, Mantooth was transferred to Crawford Long Hospital and was discharged several days later. She was subsequently diagnosed with lung cancer.

On October 28, 1998, the Red Cross notified CMC that it had supplied the hospital with blood that did not meet Red Cross standards. The Red Cross normally did not permit people who had lived in parts of Africa for more than 12 months to donate blood. The Red Cross discovered that the blood given to Mantooth had come from a donor who had lived for 13 months in a region of Africa where a rare and undetectable strain of HIV known as "Group O" had been found. The donor did not test positive for HIV in the five years between his stay in Africa and the time when he donated blood, nor was there any reason, other than his stay in Africa, to believe he had been exposed to the virus. On November 4, 1998, CMC notified Mantooth's physician, Dr. Howell, about the situation.

Approximately a month later, Dr. Howell informed Mantooth that the blood she had received should not have been accepted by the Red Cross. Mantooth underwent HIV tests in December 1998, March 1999, and April 1999, all of which were negative. On December 24, 1998, the Red Cross sent Mantooth a letter apologizing for the concern that her transfusion had caused her, and informing her that no case of transfusion transmitted "Group O" HIV disease had been reported; that the donor appeared to be in good health and that his test results were completely negative at the time of his donation in 1998; that it was most unlikely that the donor was suffering from any infectious disease; and that the chance of transmitted HIV disease was "extremely remote."

Mantooth was very upset about the possibility that she had been exposed to the strain of HIV, and she claimed that she lived in fear that she had the virus and would pass it to family members. Mantooth did not, however, seek medical treatment for emotional distress or for physical injury allegedly caused by the transfusion.

On August 27, 1999, Mantooth filed suit alleging, inter alia, that Drs. Kim and Howell were negligent, and that CMC was vicariously liable. She also included claims of negligence and the negligent and intentional infliction of emotional distress against the Red Cross. The trial court granted summary judgment to the Red Cross after concluding that Mantooth failed to present any evidence that she was actually exposed to HIV, and there was no basis for her claims of negligence or infliction of emotional distress. After Mantooth's death on May 23, 2001, Lester Johnson, the executor of her estate (the "Estate"), continued to pursue her claims.

The Estate appealed, and the Court of Appeals affirmed the trial court's grant of summary judgment to the Red Cross on the negligence claims.¹ In so doing, the Court of Appeals agreed with the trial court that Mantooth's failure to demonstrate recoverable damages was fatal to the claims. Citing McAllister v. American Nat. Red Cross, supra, and Russaw v. Martin, supra, the Court of Appeals reasoned that Mantooth was not exempt from the legal requirement of demonstrating "actual exposure" to HIV in order to recover damages for emotional distress resulting from the Red Cross's negligence.

1. The Estate contends that the Court of Appeals clearly erred in precluding any recovery against the Red Cross for negligence when the Estate proved each element of negligence. But the Estate failed to show the existence of recoverable damages in support of the negligence claims asserting physical injury and/or financial loss.

"It is well established that to recover for injuries caused by another's negligence, a plaintiff must show four elements: `a duty, a breach of that duty, causation and damages.' [Cit.]" Royal v. Ferrellgas, 254 Ga.App. 696, 698(1)(a), 563 S.E.2d 451 (2002). The Estate argues that the Red Cross's duty is clear, the breach of that duty certain, and that Mantooth suffered damages, physical as well as emotional, directly caused by the breach of duty. It cites damages Mantooth experienced after learning of the problem with the blood, including Mantooth's undergoing HIV tests, the medical charges incurred for those tests, and her pain and treatment expenses and extended hospitalization because of and following the blood transfusion.

But as noted in the opinion of the Court of Appeals, Mantooth did not produce evidence of any physical injuries or financial losses proximately caused by the Red Cross's failure to follow its standards. Johnson v. American Nat. Red Cross, supra at 592(2), 569 S.E.2d 242. There is no evidence that any adverse physical reactions suffered by Mantooth during or after the blood transfusion, or her subsequent hospitalization, had anything to do with the quality of blood she received, that is, there was no link to the Red Cross's alleged breach of duty in accepting the transfused blood. Insofar as the Estate has alleged damages, physical and financial, as the result of Mantooth's undergoing several tests for HIV, Mantooth's deposition testimony was that she did not have any medical expenses as a direct result of the transfusion.² Moreover, the undisputed evidence is that these tests would not have disclosed the presence of the "Group O" virus, which was the concern resulting from the Red Cross's acceptance of the transfused blood at issue. There is no evidence that acceptance of the particular donor's blood put Mantooth at increased risk of contracting other strains of HIV. "`"[N]egligence is not actionable unless it is the proximate cause of the injury. A wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience."'" Dry Storage Corp. v. Piscopo, 249 Ga.App. 898, 900, 550 S.E.2d 419 (2001).

The Estate also argues that the Court of Appeals improperly extended and misapplied McAllister v. American Nat. Red Cross, supra to immunize the Red Cross from negligence, and ignored McAllister's express language approving and authorizing negligence claims against sellers and collectors of blood.

It is certainly true as the Estate maintains that in McAllister, this Court held that blood suppliers like the Red Cross could not be held liable under a strict liability standard but that they were not exempt from negligence claims. Id. at 246-248(1), 240 S.E.2d 247. However, the Estate mischaracterizes the Court of Appeals's treatment of McAllister.

The Court of Appeals did not treat Mantooth's claims as though they sounded in strict liability. The Court of Appeals plainly acknowledged that in McAllister, this Court "exempted suppliers of blood from being held strictly liable under a product liability theory." Johnson v. American Nat. Red Cross, supra at 593(2), 569 S.E.2d 242. The Court then correctly noted that McAllister "recognized that blood banks could not survive if they were...