Quintana v. United Blood Services, a Div. of Blood Systems, Inc., 88CA1057

• Decision Date: 17 January 1991
• Docket Number: No. 88CA1057,88CA1057
• Parties: Chris and Susie QUINTANA, Plaintiffs-Appellants, v. UNITED BLOOD SERVICES, A DIVISION OF BLOOD SYSTEMS, INC., Defendant-Appellee. . II
• Court: Colorado Court of Appeals

Page 424

811 P.2d 424

Chris and Susie QUINTANA, Plaintiffs-Appellants, v. UNITED BLOOD SERVICES, A DIVISION OF BLOOD SYSTEMS, INC.,

Defendant-Appellee.

No. 88CA1057.

Colorado Court of Appeals, Div. II.

Jan. 17, 1991.

Rehearing Denied Feb. 14, 1991.

Certiorari Granted June 3, 1991.

Holland & Hart, A. Bruce Jones, Maureen Reidy Witt, Steven C. Choquette, Denver, for plaintiffs-appellants.

Lewis and Roca, Douglas L. Irish, Susan M. Freeman, Steven J. Lahensky, Phoenix, Ariz., Downey & Douglas, P.C., Arthur Downey, Denver, for defendant-appellee.

Waller, Mark & Allen, P.C., Kevin D. Allen, Denver, amicus curiae for Colorado Trial Lawyers Ass'n.

Breit, Best, Richman and Bosch, P.C., Susan Smith Fisher, Denver, amicus curiae for Colorado Defense Lawyers Ass'n.

Arnold & Porter, James J. Sandman, Denver (Arnold & Porter, Bruce M. Chadwich, Karen Keegan, Washington, D.C., of counsel), amicus curiae for American Red Cross, American Ass'n of Blood Banks and Council of Community Blood Centers.

Opinion by Judge SMITH.

The plaintiffs, Chris and Susie Quintana, appeal the judgment entered on a jury verdict finding against the plaintiffs and in favor of the defendant, United Blood Services. We reverse and remand for a new trial.

During surgery on May 27, 1983, plaintiff Susie Quintana received a transfusion of several units of blood and plasma which were supplied by the defendant. She began experiencing a variety of distressing symptoms a few months later, and, in December 1985, she was diagnosed as having Acquired Immune Deficiency Syndrome (AIDS).

The defendant was notified that one of its units of blood may have been the source of the infection. Upon subsequent testing of the various donors whose blood or plasma the plaintiff had received, one of the donors did indeed test positive for the antibody to the AIDS virus.

Plaintiffs brought this action against the defendant alleging that the blood or plasma it had supplied had caused the AIDS infection and that it had been negligent in failing properly to screen blood donors and in failing to implement testing procedures that would have indicated the presence of AIDS in the donated blood that plaintiff had received.

Evidence at trial disclosed the following relevant facts regarding the AIDS epidemic. At the time the infected blood was donated in early May 1983, the causative agent of AIDS was not known, although there was evidence that the disease was blood borne. And, by early 1983 the experts were in agreement that members of high-risk groups for AIDS (homosexual males, intravenous drug users, hemophiliacs, and Haitians) should be excluded from donating blood. However, no consensus had been reached as to the best method for doing so.

In January 1983, the American Association of Blood Banks (AABB), the Council of Community Blood Centers, and the American Red Cross published a "Joint Statement on Acquired Immune Deficiency Syndrome (AIDS) Related to Transfusion." The Joint Statement concluded that the evidence of AIDS transmission through blood was inconclusive but recommended more thorough screening for AIDS symptoms in donors. It did not recommend donor screening on the basis of sexual preference. Nor did it recommend surrogate testing, that is, testing for the presence of factors believed to be associated with AIDS. Surrogate testing is employed when, as in the case of AIDS, there is no specific test available for the primary condition.

In March 1983, the Food and Drug Administration (FDA) issued its first recommendations concerning AIDS and the blood supply. The FDA recommended that whole blood centers, which generally collect their blood from volunteers, give their donors pamphlets describing the groups at high risk for AIDS so that the donors themselves would, if they believed it necessary, defer from donating based on the information in the pamphlet. On the other hand, plasma centers, which generally pay their donors, were advised to take the additional steps of examining donors for swollen lymph nodes and recent weight loss. The FDA did not recommend surrogate testing for either groups because the efficacy of such tests was uncertain.

The plaintiffs contended at trial that the measures adopted by whole blood centers, including the defendant, were inadequate to reduce the risk of AIDS transmission through transfusions. Their theory was that a reasonably prudent blood bank would have questioned its donors directly regarding their sexual preference and would have implemented surrogate testing. They alleged that the defendant was negligent because it failed to do so.

One of plaintiffs' experts, the director of a plasma center, testified that, in February 1983, his center implemented a screening procedure in which prospective donors were asked if they were members of a group at high risk for contracting AIDS. Members of these groups and persons who refused to answer the question were not allowed to donate. Additionally, the lymph nodes of prospective donors were examined and anyone with swollen lymph nodes was not allowed to donate. The director also testified that, by March 1983, most plasma centers, including his, were testing the donated plasma with at least one surrogate test for the AIDS virus.

The defendant's theory at trial was that it was not negligent because its donor screening and blood testing procedures conformed with the industry custom and practice, that is, the AABB and FDA recommendations and regulations for whole blood centers. In this regard, the defendant presented evidence that its donor screening practice at this time involved giving donors a handout titled "Important Notice" which identified groups at high risk for AIDS, described the signs and symptoms of AIDS, and requested that all prospective donors who were members of a risk group or had symptoms of AIDS refrain from donating blood. Each prospective donor was also asked: "Have you been exposed to a patient with AIDS or to individuals who are at increased risk of contracting AIDS?" and "Have you had night sweating, unexplained skin eruptions or fevers, weight loss or swollen lymph glands?" The donor was prohibited from giving blood if either of these questions were answered in the affirmative.

The jury returned a general verdict in favor of the defendant.

I.

The plaintiffs contend that the trial court erred in ruling that the defendant's conduct should be measured by the professional medical practice standard. We agree.

The essence of the plaintiffs' argument is that the business of blood banking is not a professional medical activity. Thus, they assert, the reasonableness of the defendant's conduct, rather than compliance with accepted and customary practices of blood banks, should govern the determination of their negligence claims.

The "professional medical practice" standard has long been recognized in Colorado. Jackson v. Burnham, 20 Colo. 532, 39 P. 577 (1895). Under that standard, to determine the liability of a physician, a plaintiff must, in general, establish that the physician failed to possess and exercise that reasonable degree of learning and skill ordinarily possessed and exercised by members of his or her school of medicine in similar circumstances. Short v. Downs, 36 Colo.App. 109, 537 P.2d 754 (1975).

Accordingly, in a medical malpractice case, the conduct of the physician is measured against the accepted or customary medical practices of similarly trained and similarly situated physicians, rather than standards of reasonableness determined by judges and juries. Pearson, The Role of Custom in Medical Malpractice Cases, 51 Ind.L.J. 528 (1976).

This manner of evaluating negligent conduct, generally referred to as the professional negligence standard, has been applied to a number of other professions as well. See Lee v. State Board of Dental Examiners, 654 P.2d 839 (1982) (dentists); Myers v. Beem, 712 P.2d 1092 (Colo.App.1985) (attorneys); Kellog v. Pizza Oven Inc., 157 Colo. 295, 402 P.2d 633 (1965) (architects).

Here, citing § 13-22-104, C.R.S. (1987 Repl.Vol. 6A), in which blood collection, preparation, and transfusion is characterized as the performance of a "medical service," the trial court ruled that the defendant's conduct should be measured against the professional negligence standard, that is, custom and practice of the "whole blood banking" industry, rather than the ordinary standard of reasonableness. Based on this ruling, the trial court then proceeded to limit evidence on the defendant's negligence to conformance with accepted whole blood banking practices. It disallowed all evidence challenging the reasonableness of these accepted and customary practices, and finally, it instructed the jury that a blood bank's compliance with custom and practice established, as a matter of law, the absence of negligence.

The matters at issue in this appeal are whether § 13-22-104, C.R.S. (1987 Repl.Vol. 6A) does, indeed, establish the standard of care applicable to the practice of blood banking and second, if not, whether there is other support for the trial court's application of the professional negligence standard. We answer both questions in the negative.

A.

First, we conclude that the statute does not mandate or justify application of the professional negligence standard.

Section 13-22-104, commonly referred to as the Blood Shield Statute, provides in relevant part:

"(1) The availability of scientific knowledge, skills, and materials for the ... transfusion, or transfer of ... blood, or components thereof is important to the health and welfare of the people of this state. Equally important is the duty of those performing such service or providing such materials to exercise due care under the attending circumstances to the end that those receiving health care will benefit and adverse results therefrom will be minimized by the use of available and proven scientific safeguards. The imposition of legal liability without fault upon the persons and...