Spann v. Irwin Memorial Blood Centers

• Decision Date: 27 April 1995
• Docket Number: No. A063310,A063310
• Citation: 40 Cal.Rptr.2d 360,34 Cal.App.4th 644
• Court: California Court of Appeals Court of Appeals
• Parties: Douglas SPANN et al., Plaintiffs and Appellants, v. IRWIN MEMORIAL BLOOD CENTERS OF the SAN FRANCISCO MEDICAL SOCIETY, INC., et al., Defendants and Respondents. Douglas SPANN, as Personal Representative, etc., Plaintiff and Appellant, v. IRWIN MEMORIAL BLOOD CENTERS OF the SAN FRANCISCO MEDICAL SOCIETY, INC., et al., Defendants and Respondents.

Page 360

40 Cal.Rptr.2d 360

34 Cal.App.4th 644

Douglas SPANN et al., Plaintiffs and Appellants, v. IRWIN MEMORIAL BLOOD CENTERS OF the SAN FRANCISCO MEDICAL SOCIETY, INC., et al., Defendants and Respondents.

Douglas SPANN, as Personal Representative, etc., Plaintiff and Appellant, v. IRWIN MEMORIAL BLOOD CENTERS OF the SAN FRANCISCO MEDICAL SOCIETY, INC., et al., Defendants and Respondents.

No. A063310.

Court of Appeal, First District, Division 3, California.

April 27, 1995.

Michael James Moriarty, Law Offices of Michael James Moriarty, San Francisco, for plaintiffs and appellants.

Jacquelyn E. Gentry, Charles Bond, Stefanie Gandolfi, Charles Bond & Associates, Berkeley, Duncan Barr, Thomas G. Manning, O'Connor, Cohn, Dillon & Barr, San Francisco, for defendants and respondents.

CHIN, Presiding Judge.

In October of 1984 Sherrie Spann received an infusion of more than 130 units of blood plasma and platelets as treatment for a life-threatening blood disease known as thrombotic thrombocytopenic purpura (TTP). Although the treatment regimen was apparently successful, Ms. Spann contracted human immunodeficiency virus (HIV) from the infused blood products; she died in May of 1990 from complications due to acquired immune deficiency syndrome (AIDS).

Ms. Spann's husband, Douglas Spann, sued the Kaiser Foundation Hospital (Kaiser), the Permanente Medical Group, Inc. (Permanente), Irwin Memorial Blood Centers of the San Francisco Medical Society, Inc., and the San Francisco Medical Society (Irwin), for the wrongful death of his wife. ¹ The trial court granted a motion to compel arbitration and to stay the action with respect to Kaiser and Permanente. However, the court permitted Mr. Spann to pursue his lawsuit against Irwin on his causes of action for professional negligence and failure to obtain informed consent.

Irwin subsequently filed a motion for summary judgment. The trial court granted the motion as to Mr. Spann's cause of action for professional negligence. Mr. Spann then filed a motion for reconsideration and for new trial, arguing, inter alia, that the evidence was sufficient to support a cause of action for failure to obtain informed consent. The trial court entered judgment in favor of Irwin and denied the motion for reconsideration and for new trial. This timely appeal followed.

On appeal, we conclude the trial court properly granted summary judgment on the causes of action for professional negligence and failure to obtain informed consent alleged against Irwin. Consequently, we affirm the judgment.

I. FACTS

A trial court may grant summary judgment only where there is no triable issue of material fact and the documents presented by the moving party are sufficient to sustain a judgment in its favor. Where, as here, the moving party is the defendant, it must either negate an essential element of the plaintiff's case or state a complete defense. (Empire West v. Southern California Gas Co. (1974) 12 Cal.3d 805, 808, 117 Cal.Rptr. 423, 528 P.2d 31; Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1050, 282 Cal.Rptr. 726.) In reviewing a summary judgment, we strictly construe the moving party's declarations and liberally construe those of the responding party. (Valdez v. City of Los Angeles, supra, 231 Cal.App.3d at p. 1050, 282 Cal.Rptr. 726.) Our review of the record discloses the following facts.

In October of 1984, doctors at Kaiser Hospital in Vallejo diagnosed Ms. Spann as having TTP. TTP is a blood disorder which affects red blood cells. In its acute phase TTP is a medical emergency; without treatment, a TTP patient may die in a matter of weeks. One study found that in 1966 more than two thirds of TTP patients died within 90 days of the onset of symptoms.

By 1984, however, TTP could be successfully treated with a process known as "plasmapheresis." Plasmapheresis is a method for separating the liquid portion of blood--plasma--from the blood cells suspended in the plasma. To accomplish this, blood is removed from the patient and circulated through a machine where the blood is "spun down" to separate the plasma from the cells. Another fluid, usually fresh frozen plasma, is then added to the cells, and the mixture is returned to the patient.

In early October of 1984, Ms. Spann was transferred to Kaiser Hospital in San Francisco to receive plasmapheresis and hemodialysis treatment. It is undisputed that before Ms. Spann underwent plasmapheresis both she and her husband were aware there was a risk of contracting AIDS from blood transfusions. ² In addition, Ms. Spann's treating physician at Kaiser San Francisco--Dr. Weil--spoke with Mr. Spann and, according to Mr. Spann, told him there was a "one-in-a-million" possibility of contracting AIDS through plasmapheresis. It is disputed whether Dr. Weil disclosed the risk of transfusion AIDS directly to Ms. Spann. ³ According to Mr. Spann, Dr. Weil said that only about 20 units of blood products would be needed for the plasmapheresis. As it turned out, this was a substantial underestimate.

Irwin and its staff performed Ms. Spann's plasmapheresis at the Kaiser Hospital in San Francisco. Ms. Spann underwent eight separate plasmapheresis procedures from October 5 to October 12, 1984. Altogether, she received more than 130 units of plasma and separate infusions of platelets. Before each procedure Irwin's staff provided Ms. Spann with a patient information sheet that explained the process and risks of plasmapheresis. In particular, the information sheet explained that if fresh plasma were used in the process, there was a "slight possibility you may contract hepatitis. However, the blood bank has taken all possible precautions to insure that plasma is free of hepatitis." The information sheet did not list AIDS or HIV infection as a risk of plasmapheresis. Before each plasmapheresis Ms. Spann, her husband, or one of her parents signed a consent form, which stated: "I understand the risks and problems of this procedure."

Ms. Spann received her last plasmapheresis treatment on October 12, 1984. Although the treatment regimen was apparently successful, Ms. Spann contracted HIV from the infused blood products. In May of 1990 she died from complications due to AIDS.

Irwin's Motion For Summary Judgment

With respect to Irwin, Mr. Spann alleged causes of action based on, inter alia, ⁴ professional negligence (i.e., medical malpractice) and failure to obtain informed consent. Irwin's motion for summary judgment claimed that Irwin's conduct complied with the standard of care applicable to blood banks in 1984 for collecting blood and providing plasmapheresis. This claim was supported by an expert's declaration that Irwin had conformed to the applicable standard of care. Consequently, Irwin argued it was not professionally negligent.

Mr. Spann's opposition to summary judgment focused primarily on the issue of informed consent, and in particular on Irwin's alleged failure to notify Ms. Spann of the general risk of infection and the specific risk of AIDS infection from plasmapheresis. The opposition also suggested that Irwin was negligent because it failed to institute "donor reduction programs" to reduce the number of donors to whom a patient is exposed. The factual basis for Mr. Spann's opposition rested on the deposition testimony of a single expert witness: Dr. Joseph Feldschuh. In his deposition, Dr. Feldschuh claimed that because Irwin provided plasmapheresis directly to Ms. Spann, its duties "went beyond the usual blood bank duties," and it had an independent (and perhaps primary) duty to obtain Ms. Spann's informed consent. Dr. Feldschuh testified that Irwin's informed consent form for plasmapheresis was "totally deficient" because it did not (1) disclose the "high" possibility of contracting a general infection from the procedure itself; and (2) did not explain what steps could be taken to reduce the risk of infection, such as a donor reduction program. ⁵ However, Dr. Feldschuh did not fault Irwin for specifically failing to mention the risk of AIDS in the form.

With respect to the issue of a donor reduction program, Dr. Feldschuh could not name a single blood bank in the United States that was offering a donor reduction program in 1984 for patients receiving plasmapheresis for TTP. Nor could Dr. Feldschuh identify a single document dating from 1984 or before that discussed the kind of donor reduction program he advocated. Finally, Dr. Feldschuh admitted that neither the American Association of Blood Banks nor the Food and Drug Administration required community blood banks to provide a system of directed donations in 1984.

Based on this evidence, the trial court granted the motion for summary judgment, citing Osborn v. Irwin Memorial Blood Bank, supra, 5 Cal.App.4th 234, 7 Cal.Rptr.2d 101. In Osborn, the court held that whether a blood bank had taken appropriate steps to prevent the contamination of blood was a question of professional negligence which had to be decided by looking at the custom and practice of the industry. (Id., at p. 282, 7 Cal.Rptr.2d 101.) Thus, a blood bank could not be found negligent for failing to perform a test that no other blood bank in the nation was using. (Ibid.) The court further found that Irwin's expert had provided competent evidence that Irwin had met the industry standard of care in this case, while Dr. Feldschuh failed to provide testimony regarding the actual customs and practices of the blood banking industry in 1984. ⁶ Consequently, the trial court granted the motion as to the cause of action for professional negligence, but did not specifically mention the cause of action for failure to obtain informed consent.

Subsequently, Mr. Spann filed motions for reconsideration and new trial in which he argued there was sufficient evidence to survive summary judgment on a cause of action for lack of informed consent. The motion for reconsideration relied on evidence that had not been submitted in support of...