Sherwood v. Danbury Hosp.

• Decision Date: 16 May 2006
• Docket Number: No. 17202.,17202.
• Citation: 278 Conn. 163,896 A.2d 777
• Court: Connecticut Supreme Court
• Parties: Roberta Ann SHERWOOD v. DANBURY HOSPITAL.

896 A.2d 777

278 Conn. 163

Roberta Ann SHERWOOD v. DANBURY HOSPITAL.

No. 17202.

Supreme Court of Connecticut.

Argued May 19, 2005.

Decided May 16, 2006.

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Carey B. Reilly, with whom was Michael P. Koskoff, Bridgeport, for the appellant (plaintiff).

Jeffrey R. Babbin, New Haven, with whom were Christian Turner and, on the brief, Kenneth F. Baum, for the appellee (defendant).

BORDEN, NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.

Opinion

PALMER, J.

This case returns to us for a second time. The plaintiff, Roberta Ann Sherwood, commenced this action against the defendant, Danbury Hospital, alleging that she had contracted the human immunodeficiency virus (HIV), the virus that causes acquired immune deficiency syndrome (AIDS), from a blood transfusion that she had received during surgery. After the trial court, Radcliffe, J., rendered judgment for the defendant because, among other things, the plaintiff's action was barred by the three year statute of repose contained in General Statutes § 52-584,¹ the plaintiff appealed. We reversed in part the trial court's judgment, concluding that a genuine issue of material fact existed with respect to whether the three year repose provision of § 52-584 had been tolled by the continuing course of conduct doctrine. Sherwood v. Danbury Hospital, 252 Conn. 193, 195-96, 746 A.2d 730 (2000). Following our remand, the trial court, Schuman, J., rendered judgment for the defendant, concluding, inter alia, that the defendant did not have a duty to inform the plaintiff of the risks associated with the blood transfusion that she had received during surgery. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. We affirm the judgment of the trial court.

The facts and procedural history relevant to this appeal, some of which are set forth in our opinion in Sherwood v. Danbury Hospital, supra, 252 Conn. at 193, 746 A.2d 730, may be summarized as follows. "On March 2, 1985, the Food and Drug Administration approved the enzyme-linked immunosorbant assay test (ELISA test) for the purpose of screening units of blood for antibodies associated with [HIV]. Ramon Kranwinkel, a pathologist and hematologist, who, at all relevant times, was the director of the [defendant's] blood bank ... testified in a deposition that he had learned of the Food and Drug Administration's ratification of the ELISA test `sometime in 1985, earlier that year, probably around February, but [was] not sure of the exact date.'" Id., at 196-97, 746 A.2d 730.

On or about March 5, 1985, Ritchard G. Cable, a physician and then the Connecticut regional medical director of the American Red Cross (Red Cross), sent a memorandum to all of the hospital blood bank directors in Connecticut informing them that the federal government had approved the ELISA test and that he had contacted Abbott Laboratories, the first vendor of the test, for the purpose of planning the "implementation of testing blood donors in Connecticut as soon as possible." Cable further stated in the memorandum that information pertaining to the Red Cross' implementation of the test would be discussed at a meeting of the State Medical Society committee on organ and tissue transfers to be held on March 12, 1985. According to the minutes of that meeting, Cable discussed the Red Cross' plan to phase in the ELISA test over several weeks but explained that the Red Cross would not officially announce the implementation of the test until approximately one month after all newly donated blood had been tested.² In fact, the Red Cross commenced ELISA testing on March 7, 1985. Not all new donations of blood were tested, however, until March 22, 1985.³

"On April 18, 1985, Dennis [Ogiela, an orthopedic surgeon with hospital privileges who was treating the plaintiff], admitted the plaintiff to the [defendant] hospital for the treatment of congenital scoliosis. The next day, April 19, 1985, the plaintiff underwent a posterior spinal fusion during which she received four units of blood. The blood was provided to the [defendant] by the ... Red Cross ... and had an expiration date of April 22, 1985." Sherwood v. Danbury Hospital, supra, 252 Conn. at 197, 746 A.2d 730. The plaintiff's surgery was elective in nature and could have been postponed for several months without any adverse consequences to her health.

"The plaintiff, in an uncontroverted affidavit, swore that, prior to her surgery: (1) she `did not know of the risk of contracting HIV from a blood transfusion and [that] the [d]efendant did not inform [her] of [that] risk'; (2) she `did not know that [she] had the option [of banking her] own blood for the surgery and [that] the [d]efendant did not tell [her] of [that] option'; (3) she `was not aware that there was a test to detect the presence of ... HIV [antibodies] in blood'; (4) she `did not know that [she] was given untested blood'; and (5) `no one ever told [her] that [she] could [have] postpone[d][the] surgery until tested blood was available.'

"Kranwinkel testified that neither he nor anyone else from the [defendant's] blood bank had told the plaintiff, prior to surgery, that the ELISA test was available for screening blood for the presence of HIV antibodies. Kranwinkel further testified that when the plaintiff was transfused, he had assumed that the blood had not been tested for the presence of HIV antibodies." Id. Ogiela, the plaintiff's treating physician, testified that he had advised the plaintiff prior to surgery that a blood transfusion likely would be required and of the general risks associated with blood transfusions, including the risk of contracting HIV. Ogiela further testified that he had informed the plaintiff that she could bank or donate her own blood to be used during the surgery.⁴ Ogiela conceded, however, that, at that time, he was unaware that a test had been approved for screening HIV antibodies in blood and that all newly donated blood would be tested in the very near future. Ogiela further acknowledged that he therefore had not advised the plaintiff about the option of postponing surgery until fully tested blood became available. Moreover, according to the plaintiff's experts, at the time of the plaintiff's surgery, it was common knowledge in the medical community that the Food and Drug Administration had approved the ELISA test, that the test would be fully implemented very shortly and that all elective surgery should be postponed until after the blood supply had been tested completely.

"On, or shortly after, April 20, 1985, the day after the plaintiff's transfusion, Kranwinkel received a letter from the Red Cross. The letter stated that, `effective April 22, 1985, all units of whole blood and blood components routinely distributed by the American Red Blood Services, Connecticut Region, will have been determined to be nonreactive when tested for [HIV antibodies].' The letter requested [that] the [defendant] . . . `promptly return' to the Red Cross all units of blood remaining in its inventory that had [been collected prior to March 22, 1985].⁵ Kranwinkel testified that the [defendant's] blood bank had complied with this request. Kranwinkel further testified that, had the plaintiff not received the units of blood that [had been] used during her transfusion, those units would have been among the units returned to the Red Cross." Id., at 198, 746 A.2d 730. Prior to his receipt of the April 20, 1985 letter, however, Kranwinkel had no way of knowing which units of blood in the defendant's inventory had been tested for the presence of HIV antibodies and which units had not been tested.⁶

"On September 1, 1994, following a routine blood test ordered by Micheline Williams, the plaintiff's physician, the plaintiff learned for the first time that she had contracted HIV. An investigation ensued, through which the plaintiff learned, for the first time, on March 14, 1995, that the source of her HIV infection was contaminated blood administered to her during the April 19, 1985 transfusion.

"The plaintiff's uncontroverted affidavit also contained numerous, specific factual statements regarding the absence of any information given by the defendant to the plaintiff following the transfusion. She swore that `at no time' did the defendant tell her that: (1) `the ELISA test was available at the time of [her] surgery'; (2) `the blood [that she] was given during surgery was not tested for the presence of HIV [antibodies]'; (3) `the blood [that she] was given [during] surgery [had been] "recalled" by the Red Cross'; and (4) `[she] could have postponed her surgery ... a few days' until tested blood became available.

"The plaintiff also submitted ... an uncontroverted affidavit from Elizabeth Donegan, a physician who, from 1985 to 1991, had been in charge of operating a blood bank at a hospital affiliated with the University of California at San Francisco, a community with a large population infected with HIV. Donegan was retained as an expert witness by the plaintiff and stated in her sworn affidavit that: (1) she directed a program at her hospital between July, 1987, and October, 1987, `to notify all persons who had been recipients of untested blood dating back to approximately the time [her hospital] was aware of the ... presence [of HIV] in [the] community'; and (2) in March, 1987, `the Center for Disease Control ... issued a recommendation that recipients of multiple transfusions between 1978 and late spring of 1985 be advised that they were at risk for ... HIV... infection and [be] offered HIV antibody testing.'" Id., at 198-99, 746 A.2d 730.

On July 9, 1996, the plaintiff commenced this action against the defendant⁷ alleging, inter alia, that the defendant negligently had supplied untested blood for the plaintiff's blood transfusion and negligently had failed to inform the...