Parker v. State of New York

• Citation: 201 Misc. 416
• Parties: Ruth Parker, as Administratrix of The Estate of Ernest Parker, Deceased, Claimant,<BR>v.<BR>State of New York, Defendant. (Claim No. 29907.)
• Decision Date: 28 June 1951
• Court: New York Court of Claims

201 Misc. 416

Ruth Parker, as Administratrix of The Estate of Ernest Parker, Deceased, Claimant,

v.State of New York, Defendant. (Claim No. 29907.)

June 28, 1951.

William A. Hyman and Harold W. Hayman for claimant.

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

SYLVESTER, J.

Ernest Parker, whose administratrix brings this action against the State for wrongful death and for pain and suffering, was admitted to the Northern Westchester Hospital in Mt. Kisco, New York, at 2:45 on the morning of November 21, 1948, having been picked up by a passerby on the roadside unconscious and in an apparently critical condition. The resident physician prescribed shock therapy and a transfusion of pooled blood plasma was administered. Parker recovered and left the hospital within a week, returning to his employment after a further period of convalescence at his home. On February 11, 1949, he was readmitted to the hospital, suffering from homologous serum jaundice or hepatitis and died on February 12, 1949. It is established by a preponderance of the proof that Parker's death resulted from the fact that the plasma used in the transfusion had been infected with the jaundice virus. The plasma was war surplus blood plasma which had been originally procured for the Army and Navy by the American Red Cross and, having been declared surplus by the War Department upon the cessation of hostilities, was distributed to health agencies in the forty-eight States for allocation to hospitals and licensed physicians. The particular plasma administered to Parker had been shipped from the Red Cross to the Westchester County Red Cross Chapter, which stored the material and delivered it untouched and in its original package to the hospital in response to its request communicated to the Westchester County Health Commissioner who had been designated by the State Commissioner of Health as District Laboratory Supply Station Custodian.

Essentially, it is claimed that the State, having knowledge of the incidence of homologous serum jaundice due to the use of pooled plasma, was guilty of negligence in the distribution of the Red Cross plasma, and that it was at fault in failing to warn physicians of this danger.

The use of blood as a therapeutic agent is a comparatively recent development. Representing in its early stages "the final desperate gesture of the helpless physician toward a moribund patient", the experience and knowledge acquired in the treatment of the casualties of two major wars rendered the administration of blood or blood derivatives a recognized therapeutic device used in the presence of established clinical indications. Transfusion therapy involves either the use of whole blood, plasma, which is the fraction of blood remaining after the red cells have been removed, or serum albumin, another blood derivative. The use of plasma as a substitute for whole blood was developed as the result of a medical research program instituted in 1939 and 1940 at the request of the Surgeons General of the Army and Navy, designed to meet the need for a blood product which could be stored and stockpiled, was readily transportable and could be administered without regard to the donors' blood group or without incurring the danger of reaction due to incompatibility of bloods.

Widely used during the Second World War because of its availability and convenience in administration, plasma saved thousands of lives but also brought with it the problem of the transmission of disease from an infected blood donor. It was early ascertained that homologous serum jaundice constituted one of the principal dangers. While both blood and plasma are potential vectors of disease, the problem was particularly acute in the case of pooled dried plasma, since its manufacture involved the pooling of the blood of ten to fifty donors, any one of whom might infect the entire lot. In the Army, homologous serum jaundice was second only to venereal disease in hospital bed-days involved.

When the Red Cross plasma distribution program was initiated early in 1946, the Red Cross, through its committee on blood and blood derivatives, directed the attention of the various State health departments to the possibility of virus transmission, particularly emphasizing the danger of serum jaundice. It was suggested that studies be instituted to determine as accurately as possible the incidence of this disease. In October, 1946, the New York Sanitary Code was amended to require physicians to report cases of serum jaundice to the public health authorities. Department of Health Form CD 103, kept in the offices of all physicians for the reporting of all communicable diseases as required by law, listed serum jaundice as a reportable disease and included the question, "if jaundice, did patient receive transfusion of blood, plasma or other blood product during the six months period prior to onset?" The State of New York also conducted the outstanding study in the country in this connection and, upon the conclusion of its investigations, widely publicized its findings which disclosed an incidence of serum jaundice of 4.8%. Based on this report and the data obtained from other studies, the Red Cross committee on blood and blood derivatives again considered the advisability of continuing the distribution of plasma at a meeting held in the Spring of 1947 and at later meetings, and announced its conclusion to continue plasma distribution in a report forwarded on August 15, 1947, to the various State agencies, pointing out that, in view of the lack of availability of whole blood or other relatively safe blood derivatives in many parts of the country, plasma would save many more lives than would be lost from the occasional incidence of serum hepatitis resulting from its use.

The medical evidence establishes that the use of plasma is indicated, with rare exceptions, only where other safer blood or blood products are not "available". But availability does not consist merely in having blood or blood products in the hospital blood bank. In the apt phrase of a medical witness, "You do not just grab a bottle of blood and give it." Whole blood requires cross matching and typing in order to determine the compatibility of the donor's blood with that of the patient. The bloods must be mixed together in a test tube or on a slide and evidence of compatibility obtained. If incompatible blood is administered, there is a fifty-fifty chance of death resulting from kidney shutdown. While Witebsky's Solution, when combined with universal "O" blood, markedly lessens the danger of incompatibility, other risks are not affected. It is obviously a matter of medical judgment to determine in a particular case whether to administer plasma immediately, despite the danger of serum jaundice, or to risk the delay involved in cross matching whole blood...