Ray v. American Nat. Red Cross

• Decision Date: 21 November 1996
• Docket Number: No. 93-CV-759.,93-CV-759.
• Parties: Roland RAY and Janet Ray, Appellants, v. AMERICAN NATIONAL RED CROSS, Appellee.
• Court: D.C. Court of Appeals

696 A.2d 399

Roland RAY and Janet Ray, Appellants, v. AMERICAN NATIONAL RED CROSS, Appellee.

No. 93-CV-759.

District of Columbia Court of Appeals.

Argued March 20, 1995.

Decided November 21, 1996.

Filed May 16, 1997.¹

Christopher V. Tisi, with whom Michael H. Feldman, Peter J. Vangsnes, and Sidney Schupak, Washington, DC, were on the brief, for appellants.

Fern P. O'Brian, with whom Peter K. Bleakley and Terri J. Lavi, Washington, DC, were on the brief, for appellee.

Before STEADMAN and RUIZ, Associate Judges, and MACK, Senior Judge.

RUIZ, Associate Judge.

Roland Ray contracted the human immunodeficiency virus (HIV), the virus that causes acquired immune deficiency syndrome (AIDS), through a blood transfusion. The blood was collected in July 1984 by the American National Red Cross. Roland Ray and Janet Ray, who are married, commenced this action recover damages, alleging that the Red Cross was negligent in failing to take adequate measures to ensure that persons at risk of HIV infection were prevented from donating blood, and that donated blood likely to contain HIV was not used for human transfusion. The jury returned a verdict for the Red Cross, finding that it had not been negligent. The trial court entered judgment on the verdict.

On appeal, the principal issue is whether the instructions given by the trial court adequately conveyed to the jury the essence of the tort of negligence.² The Rays also seek review of the trial court's exclusion of evidence concerning subsequent measures taken by the Red Cross to screen prospective donors, subsequent studies that showed screening measures involving direct questions of prospective donors to be feasible and effective, and impeachment of the Red Cross's experts with statements they made after July 1984.

We agree that the instructions did not in substance adequately convey to the jury the law of the District of Columbia regarding negligence—that is, failing to act as a reasonable person would have acted under the circumstances. Therefore, we reverse and remand the case for further proceedings consistent with this opinion. Because the evidentiary issues are likely to arise in any further proceedings, we address the standards to be applied by the trial court on remand.

I.

The precise legal issue presented in this case is whether one who performs a service that requires special skill or knowledge must, to avoid liability for harm flowing from her actions, use the same care a reasonable person in the same field would use under the circumstances, or need only do what others who perform similar services would ordinarily do in such circumstances. The Rays contend for the reasonableness standard; the Red Cross urges the ordinary practice standard. To provide a background for our discussion, we first summarize briefly the evidence adduced at trial.

In August 1984, Mr. Ray was shot during a robbery of his convenience store. He was infected with HIV during treatment of the wound as the result of a transfusion of a blood product supplied by the Red Cross. The infected blood was traced to a unit donated in July 1984 by a bisexual man at a blood drive that the Red Cross conducted at his workplace. The evidence showed that Mrs. Ray had not, as of the time of trial, contracted the virus.

At trial, the Rays sought to show that had the Red Cross screened prospective donors by taking greater care to inform them of the groups at risk for HIV infection, confidentially inquiring regarding their sexual history, and providing them with a more confidential method of self-deferral, the donor of the unit of blood that infected Mr. Ray would have deferred and his blood would not have entered the blood supply from which Mr. Ray was transfused. The Rays also attempted to show that, although no test for detecting HIV had yet been developed in 1984, HIV infection was known and had the Red Cross used one or more available "surrogate tests" for other infections or conditions that often accompany HIV infection, the unit of blood that eventually infected Mr. Ray would not have been used for human transfusion. The Rays' evidence consisted of expert opinion testimony that, based on the knowledge concerning HIV available in July 1984 and the degree of risk posed by the possibility of HIV-infected blood being used for transfusion, a reasonably prudent blood collector would have employed such donor screening and blood testing procedures. The Rays also presented the testimony of the blood donor, who testified that he was semi-illiterate and did not know that he was in a high-risk group. The donor also testified that if he had been informed of the risk and given the opportunity to defer confidentially, he would not have donated blood.

In its defense, the Red Cross established that in July 1984, the vast majority of blood collectors, including the Red Cross, did not use the kind of screening and testing procedures the Rays contended a reasonable blood collector would employ. Furthermore, the Red Cross presented evidence tending to show that its procedures conformed to those recommended by government agencies. The Red Cross also presented testimony that in July 1984, it was thought that implementation of more thorough donor screening procedures would have strenuously been objected to by high risk donors and, consequently, that implementation of more stringent screening procedures would have resulted in lowered blood donations by high risk donors and perhaps even in purposeful contamination of the blood supply by donors offended by the screening procedures.

II.

A.

The Rays contend that the Red Cross was obliged to act as a reasonable blood bank, that possessed the knowledge and skill of the Red Cross, would have acted under the circumstances; the Red Cross contends that it had only to act as any ordinary blood bank reasonably would have acted under the circumstances. To support their respective contentions concerning the nature and source of the standard of care applicable in this case, the parties have quoted phrases from numerous medical malpractice cases from this jurisdiction. Compare Meek v. Shepard, 484 A.2d 579, 581 (D.C.1984) (stating that the standard of care is the course of action that a reasonably prudent doctor with the defendant's specialty would have taken under the same or similar circumstances) and Morrison v. MacNamara, 407 A.2d 555, 560 (D.C. 1979) (noting that the standard of care of health care professionals is that degree of care reasonably expected of other medical professionals with similar skills acting under the same or similar circumstances) with Psychiatric Inst. of Washington v. Allen, 509 A.2d 619, 625 (D.C.1986) (approving instruction that defendant's employees were "required to use that degree of care, skill and learning ordinarily possessed by and used by psychiatric nurses acting under the same or similar circumstances") and Garfield Memorial Hosp. v. Marshall, 92 U.S.App.D.C. 234, 239, 204 F.2d 721, 725 (1953) ("The duty of a private hospital to give a patient such reasonable care and attention as the patient's known condition requires ... is measured by the degree of care, skill and diligence customarily exercised by hospitals generally in the community, and by the express or implied contract with the patient.") and Rodgers v. Lawson, 83 U.S.App.D.C. 281, 282, 170 F.2d 157, 158 (1948) ("A physician must exercise that degree of care and skill ordinarily exercised by the profession in his own or similar localities." (internal quotation marks omitted)) and Sweeney v. Erving, 35 App. D.C. 57, 61 (1910) ("It is well settled that the degree of skill and learning which a physician or surgeon is required to possess and exercise is that degree of skill and learning ordinarily possessed and exercised by members of his profession in the same line of practice in that locality."). Some cases appear to espouse both standards. See Washington v. Washington Hosp. Ctr., 579 A.2d 177, 181 (D.C.1990) (although first stating that the standard of care is "the course of action a reasonably prudent professional with the defendant's specialty would have taken under the same or similar circumstances," then saying that the question for the jury was whether "a reasonably prudent tertiary care hospital, at the time ... and according to national standards" would have acted as the defendant did); Washington Hosp. Ctr. v. Butler, 127 U.S.App.D.C. 379, 383, 384 F.2d 331, 335 (1967) (same).

The various verbal formulations of the standards that were employed in those cases, without dispute and express judicial consideration, do not alter the fundamental proposition that in our law of negligence there is but one "`uniform standard of conduct: that of reasonable care under the circumstances.'" Sinai v. Polinger Co., 498 A.2d 520, 529 (D.C.1985) (quoting Morrison, supra, 407 A.2d at 560). We have previously rejected the proposition that a defendant's conformity to ordinary custom and practice is an absolute defense to a claim premised on negligence. In Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195 (D.C.1991), several merchants had extended credit to a person who fraudulently assumed the identity of the plaintiff. Id. at 197. The plaintiff, seeking compensation for the resulting damage to his credit rating, sued the merchants, contending that they negligently failed to verify the information in the fraudulent credit applications. Id. The merchants sought and obtained summary judgment, supporting their motion with affidavits to the effect that their handling of the applications was consistent with the practice in the industry. Id. at 197-98. We held that although the conduct of people possessing or charged with skills and knowledge similar to the defendant's under similar circumstances is evidence relevant to establishing how a reasonable and prudent person would act under the circumstances, it is not dispositive on the issue; the fact that some or most persons who are in a position...