N.N.V. v. American Ass'n of Blood Banks

• Decision Date: 28 October 1999
• Docket Number: No. D026690.,D026690.
• Citation: 89 Cal.Rptr.2d 885,75 Cal.App.4th 1358
• Court: California Court of Appeals Court of Appeals
• Parties: N.N.V., a Minor, etc., Plaintiff and Appellant, v. AMERICAN ASSOCIATION OF BLOOD BANKS, Defendant and Appellant; Raquel Lugo, Defendant and Respondent.

89 Cal.Rptr.2d 885

75 Cal.App.4th 1358

N.N.V., a Minor, etc., Plaintiff and Appellant, v. AMERICAN ASSOCIATION OF BLOOD BANKS, Defendant and Appellant Raquel Lugo, Defendant and Respondent.

No. D026690.

Court of Appeal, Fourth District, Division 1.

October 28, 1999.

Review Denied January 19, 2000.

Carney, Williams, Blackburn & Appleby, Carney, Williams, Blackburn, Appleby, Brewick & Maharry, Carney, Appleby & Brewick, James W. Carney, Des Moines, IA; Higgs, Fletcher & Mack and John Morris, San Diego, for Plaintiff and Appellant.

Charles Bond & Associates, Charles M. Marx, Berkeley, Claudia J. Martin, San Mateo; Bond, Gamma & Associates, Charles Bond; O'Connor, Cohn, Dillon & Barr, Duncan Barr, Lisa Ungerer and Dexter Louie, San Francisco, for Defendant, Respondent and Cross-Appellant American Association of Blood Banks.

Jenner & Block, Jerald A. Jacobs, Robert M. Portman, Washington, DC, Jeffrey T. Shaw; Catherine I. Hanson, San Francisco; and Thomas W. Greeson, Reston, VA, for California Medical Association, American College of Radiology, American Medical Association, American College of Surgeons, College of American Pathologists, American Association of Tissue Banks, American Society of Association Executives and National Fire Protection Association as Amici Curiae on behalf of Defendant, Respondent and Cross-Appellant American Association of Blood Banks.

Hinshaw & Culbertson, Russell S. Roeca, San Francisco, Thomas K. Berg, Minneapolis, MN, and Thomas J. Barrett, Washington, DC, for National Marrow Donor Program as Amicus Curiae on behalf of Defendant, Respondent and Cross-Appellant American Association of Blood Banks.

Neil, Dymott, Perkins, Brown & Frank, Sheila S. Trexler, Hugh A. McCabe and Craig T. Mann, San Diego, for Defendant and Respondent Raquel V. Lugo.

KREMER, P.J.

N.N.V., a minor, appeals a judgment in favor of the American Association of Blood Banks (hereafter AABB) and Raquel V. Lugo, R.N., on his complaint seeking damages for developing acquired immune deficiency syndrome (AIDS) as a result of a blood transfusion during surgery in December 1984.

On appeal, N.N.V. contends the court erred in granting summary judgment in favor of the AABB on the basis the AABB owed no duty of care nor had breached any duty of care owed to N.N.V. as to recommendations it made prior to December 1984 about reducing the risk of AIDS transmission through blood transfusion. N.N.V. contends the court erred in failing to grant a new trial on Lugo's liability for allegedly failing to inform the surgeon of his parents' request to make directed donations of blood for his surgery (i.e., blood donations by family, friends or coworkers). N.N.V. contends a new trial should have been granted because the court improperly excluded his father's deposition testimony and Lugo's counsel committed misconduct during closing argument.

The AABB also appeals, contending the court erred in refusing to find it was immune from liability pursuant to Civil Code section 43.7, subdivision (b).¹

We affirm.

FACTS

A. The AABB

The AABB is a professional, nonprofit scientific and administrative association that includes individuals and institutions engaged in blood banking and transfusion medicine. The AABB's membership includes about 9,000 individual members (e.g., physicians, medical technologists, administrators, blood donor recruiters and nurses) and 2,400 institutional members (e.g., community and regional blood centers, hospital blood banks and hospital transfusion services). The AABB's membership includes at least 25 percent of the persons or institutions involved in blood banking in the United States. The AABB together with the American Red Cross and Council of Community Blood Centers (CCBC) represent about 2,500 community and regional blood centers, hospital blood banks, and transfusion services that collect and transfuse over 98 percent of the nation's voluntary blood supply.

The AABB's mission statement states its goals include establishing and promoting "the highest standards of care for patients and donors through leadership in all aspects of blood banking, [and] transfusion medicine," developing and promoting "quality management and improvement programs for blood centers [and] transfusion services," increasing "professional educational opportunities," establishing "a legal, regulatory and public policy environment conducive to the effective and efficient operation of [its] members in providing the highest level of health-care services," actively promoting "the application of basic scientific discoveries to the continuous improvement and enhancement of blood transfusion ... practices," and developing "a mutually beneficial working relationship with other organizations, including state and regional blood banking associations, to address areas of common concern and to promote the AABB as the leader in its chosen field."

The AABB does not itself collect, prepare, test, process, store or distribute blood or blood products. The AABB, inter alia, promulgates voluntary standards for blood banking organizations and operates a voluntary system of accreditation and inspection of blood banks. The AABB's standards have been adopted by the Joint Commission on Accreditation of Hospitals as the standard for blood banking and transfusion services for hospitals. California has incorporated the AABB's standards as minimum standards into its statutory and regulatory provisions for blood banks and blood transfusion services. (Health & Saf.Code, § 1602.5, subd. (a)(1) [persons engaged in production of human whole blood and whole blood derivatives must be licensed and act in accordance with the AABB's standards]; Cal.Code Regs., tit. 17, §§ 1024, 1024.1 [preparation of red blood cells]; Cal.Code Regs., tit. 17, § 1002, subd. (d) [pretransfusion procedures must meet the AABB or equivalent standards].)

B. AIDS and Blood Transfusions²

By December 1982 there was evidence suggesting AIDS could be transmitted through the transfusion of blood products; the Centers for Disease Control (CDC) reported on December 10, 1982, that an infant who had received blood platelets had been diagnosed as possibly suffering from AIDS. The CDC convened a conference on January 4, 1983, to address the possibility AIDS could be transmitted through blood transfusion.

At the January 1983 CDC meeting, some persons expressed doubts whether there was a risk of AIDS transmission by the transfusion of whole blood, while others were certain that AIDS could be transmitted by blood products. Various recommendations were made as to ways to ensure the safety of the nation's blood supply, but no consensus was reached. Among the recommendations made was a proposal to directly question donors as to whether they were a member of one of the high risk groups then identified as homosexuals, hemophiliacs, intravenous (IV) drug users and Haitians. There was considerable disagreement about this proposal, with members of the National Gay Task Force expressing concerns about whether direct questioning would be ethical or fair, while the National Hemophilia Foundation urged adoption of the proposal.

Another suggested proposal was the use of surrogate testing. A surrogate test detects a disease that is commonly associated with the target disease.³ A CDC immunologist, Dr. Thomas Spira, indicated the most successful test was the anti-HBc test, which tested for the antibody to the hepatitis B core antigen (hereafter anti-HBc test), since hepatitis B was prevalent in the same populations that were at high risk for AIDS and the antibody to the core antigen remained elevated even after recovery and thus would identify all persons who had had hepatitis B. He conducted a study on persons who had developed AIDS or its "prodromal illnesses." According to Spira, the test yielded positive results in 90 to 100 percent of AIDS patients in the various groups, and yielded positive results in 90 percent of persons with "lymphadenopathy, a prodrome of AIDS." However, there was only one manufacturer of commercial kits to test for the hepatitis B core antigen, and it was unclear whether this test could be rapidly and efficiently made available. Also raised were concerns about the cost of the test. Additionally, a member of the American Red Cross expressed concerns about the fact the test would have positive results in 5 percent of the normal population who did not have AIDS; he noted a recent major newspaper had headlined an article on AIDS as "Lethal Disease Kills Victims," and wanted to know how to explain to people that their blood was being rejected but they were still healthy. CDC officials, because of the disagreements expressed at the meeting, did not issue any recommendations.

On January 13, 1983, the AABB, American Red Cross and CCBC issued a joint press statement on AIDS related to transfusion. These organizations cited assistance in developing their statement from the American Blood Commission, National Gay Task Force, the National Hemophilia Foundation Resources Association, the CDC and the Food and Drug Administration (FDA). In the joint statement the organizations stated:

"There is currently considerable pressure on the blood banking community to restrict blood donation by gay males. Direct or indirect questions about a donor's sexual preference are inappropriate. Such an invasion of privacy can be justified only if it demonstrates clear-cut benefit. In fact, there is reason to believe that such questions, no matter how well-intentioned, are ineffective in eliminating those donors who may carry AIDS. Blood banks should work with the leadership of groups which include some individuals at high risk of AIDS."

The January 13, 1983, joint statement also noted "[w]hile there is no specific test for AIDS, there are laboratory and clinical findings that are present in nearly all AIDS patients. The use of these nonspecific markers, for example, lymphopenia, immune complexes, and anti-HBc, are...