Snyder v. Mekhjian
| Decision Date | 30 October 1990 |
| Parties | , Prod.Liab.Rep. (CCH) P 12,686 William SNYDER and Roslyn Snyder, Plaintiffs-Appellants, v. Haroutune MEKHJIAN, M.D., individually; Haroutune Mekhjian, M.D., P.C.; Youngick Lee, M.D.; Wilmo Orejola, M.D.; St. Joseph's Hospital; St. Joseph's Blood Bank; Bergen Community Blood Center; American Association of Blood Banks, Defendants-Respondents. and Anthony Losardo, M.D.; Leonard Savino, M.D.; Thil Yoganathan, M.D.; John Klian, M.D.; Molly Zachariah, M.D.; Thomas Raymundo, M.D.; John Chritiano, M.D.; John Doe, M.D., a Fictitious Name; Richard Roe, M.D., a Fictitious Name; John Roe, M.D., a Fictitious Name; John Smith, M.D., a Fictitious Name; John Jones, M.D., a Fictitious Name; W Blood Bank, a Fictitious Name; Z Blood Bank, a Fictitious Name; XYZ Blood Bank, a Fictitious Name; Jane Doe, a Fictitious Name; Richard Roe, a Fictitious Name; Joseph Williams, a Fictitious Name; Joseph Rogers, a Fictitious Name; Gregory Smith, a Fictitious Name; Joseph Smith, a Fictitious Name; Jane Smith, a Fictitious Name; William Smith, a Fictitious Name; Individually and as Agents, Employees and Servants of St. Joseph's Hospital, Defendants. |
| Court | New Jersey Superior Court — Appellate Division |
George T. Baxter, for plaintiffs-appellants (George T. Baxter, Hackensack and Daniel G. Larkins, Bayonne, on the brief).
Robert W. Donnelly, Jr., for defendants-respondents Haroutune Mekhjian, M.D.; Youngick Lee, M.D.; and Haroutune A. Mekhjian, M.D., P.C. (Dughi and Hewit, attorneys; Robert W. Donnelly, Jr., and Patricia M. Bass, Cranford, on the letter brief).
Milton Gurny, for defendant-respondent St. Joseph's Hosp. and Medical Center (Hein, Smith, Berezin, Maloof, Spinella & Rogers, attorneys; Milton Gurny, Hackensack on the letter brief).
Roger G. Ellis, for defendant-respondent Bergen Community Blood Center (Bumgardner, Hardin & Ellis, attorneys; M. Christie Wise, Springfield, on the brief).
Edwin R. Matthews, for defendant-respondent American Ass'n of Blood Banks (Cuyler, Burk & Matthews, attorneys; Edwin R. Matthews and Karla M. Donovan, Florham Park, on the brief).
Before Judges PRESSLER, BAIME and A.M. STEIN.
The opinion of the court was delivered by
PRESSLER, P.J.A.D.
The fundamental issue raised by this action is whether liability attaches to anyone, and if so to whom and under what legal theory, when a surgical patient contracts Acquired Immune Deficiency Syndrome (AIDS) as a result of transfusion with contaminated blood supplied by a non-profit blood bank. We granted plaintiffs leave to appeal from the trial court's interlocutory order dismissing the strict liability counts against all defendants, and we now affirm that order. We also granted plaintiffs' motion for leave to appeal from the interlocutory order denying their motion for discovery from the blood bank of the infected donor's identity, medical records, and recollections of the screening process to which he was required to submit before his donation was accepted. We reverse the order denying discovery subject to the protective conditions hereafter described.
Plaintiff William Snyder, whose wife Roslyn sues per quod, underwent elective coronary artery by-pass surgery and an aortic valve replacement at St. Joseph's Hospital in Paterson on August 23, 1984. The surgery was performed by defendant Haroutune Mekhjian, assisted by defendants Youngick Lee and Wilmo Orejola. Some hours after the original surgery, a second surgical procedure was performed to repair a bleeding artery. During this procedure plaintiff was infused with, among other blood products, a unit of platelets, identified as serial number 29F0784, which had been supplied to St. Joseph's by defendant Bergen Community Blood Center (BCBC), a non-profit collector and distributor to hospitals of donated blood. Plaintiff's recuperation proceeded uneventfully, and he was discharged from the hospital several weeks later.
In April 1984 the HTLV-111 virus (HIV) was identified as the cause of AIDS. By March, 1985, tests were available which enabled the nation's blood banks to screen all donated blood for HIV antibodies. This screening process was attended by a nation-wide "Look Back" program by which the blood banks were able to determine whether a now-identifiable HIV-positive donor had given blood prior to March 1985 and, if so, to which hospital that donor's blood had been supplied. In October 1986, BCBC wrote to St. Joseph's to advise that unit number 29F0784, supplied by it to the hospital on August 23, 1984, had come from a donor now testing positive for HIV antibodies. The hospital, by review of its records, ascertained that plaintiff had received that unit, and in April, 1987, it so advised his physician, offering the hospital's resources should further testing of the patient and counselling services be required. According to the physician's note on the hospital's follow-up report, he determined that:
Recipient [plaintiff] now lives in Florida. Prior to my notifying him he was tested in response to the CDC [Center for Disease Control] recommendation that all recipients be tested. His tests were positive. His wife and two sons were subsequently tested and found to be negative. He is being counselled by a physician in Florida. The recipient has no risk factors.
Plaintiff instituted this action in February 1989 against the hospital, the physicians involved in his diagnosis and treatment, BCBC, and the American Association of Blood Banks (AABB). AABB is a national non-profit association of non-profit blood banks, whose members, of which BCBC is one, collect about half of the country's donated blood. The American Red Cross collects the other half. As we understand the record, AABB collects and disseminates relevant scientific and administrative information to its thousands of members, prescribes standards for their operations, and speaks for them.
Plaintiff asserted a strict liability claim against all defendants, contending that at the time of his transfusion, laboratory tests as well as donor screening techniques were available which, had they been employed, would have screened out HIV-positive donors and rendered the supply of donated blood safe from AIDS contamination. AABB did not, however, recommend their use to its members, and BCBC did not use them. Plaintiff claims that since the blood he received from BCBC could have been made safe, all those in the chain of collection and distribution of the infected blood he did receive should be held strictly liable for providing him with a defective product.
Plaintiff also asserted negligence claims against all defendants. His claims against the physicians are based on the assertion of professional negligence in not advising him of the risk of receiving contaminated blood and of the option either to collect his own blood for transfusion prior to the surgery (autologous transfusion) or to arrange to have blood available from family members or other known donors (direct donor transfusion). He also claimed that it was the negligence of Dr. Mekhjian and his assistants in failing to repair the bleeding artery during the original surgery which caused the necessity for the second surgery and the consequent contaminated transfusion.
Plaintiff's negligence complaint against the BCBC and AABB was based on the state of scientific knowledge respecting AIDS, its diagnosis and transmission at the time of his transfusion. He alleged that these defendants greatly enhanced his risk of receiving contaminated blood by failing to prescribe and implement available risk-reducing procedures in the blood-collection process. He also asserted that BCBC negligently failed to follow such screening procedures as it did then have in place, inadequate as they may have been. He claimed that but for that negligence, BCBC would have rejected the infected donor's blood. Plaintiff also asserted consumer fraud and punitive damages claims against these defendants based on their alleged knowing and irresponsible failure to protect the blood supply from AIDS contamination.
On summary judgment motions by defendants, the following dispositions ensued: 1) the consumer fraud and strict liability claims as against all defendants were dismissed; 2) all claims against St. Joseph's Hospital were dismissed; 3) the punitive damage claims against the physicians were dismissed. The claims which survived are the negligence claims against AABB, BCBC and the surgeons and the punitive damage claims against AABB and BCBC. In addition, the court ruled that BCBC was not entitled either to charitable immunity pursuant to N.J.S.A. 2A:53A-7 or to the $10,000 damages limitation of N.J.S.A. 2A:53A-8. Finally, by separate order, the court denied plaintiff's application for production by BCBC of its records of the still anonymous donor of unit number 29F0784.
Plaintiff sought leave to appeal only from the dismissal of the strict liability claims and the denial of the donor discovery motion. No defendant sought leave to appeal from any ruling adverse to it. Consequently strict liability and discovery of the donor records are the only issues now before us.
Consideration of the strict liability claims requires a brief foray into the relevant scientific facts as they were known in August 1984 and the manner in which they were responded to by the nation's blood-banking organizations. As appears from the experts' materials included in the record on the summary judgment motions, the critical period of AIDS contamination of the blood supply was from mid-1981, when the first AIDS cases were diagnosed, to March 1985, when the first test for HIV virus antibodies was developed and in place. According to the scientific data in the record, both the Center for Disease Control (CDC) and the Public Health Service Committee on Opportunistic Infections had, prior to the end of 1982 reported to the blood banking community the likelihood that...
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