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

Decision Date23 March 1992
Docket NumberNo. 91SC172,91SC172
Citation827 P.2d 509
PartiesUNITED BLOOD SERVICES, A DIVISION OF BLOOD SYSTEMS, INC., Petitioner, v. Chris and Susie QUINTANA, Respondents.
CourtColorado Supreme Court

Downey & Douglas, P.C., Arthur H. Downey, Laurel E. Adams, Denver, Lewis & Roca, Steven J. Labensky, Susan M. Freeman, Phoenix, Ariz., for petitioner.

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

Arnold & Porter, P.C., Richard P. Barkley, Denver, for amici curiae American Nat. Red Cross, American Ass'n of Blood Banks, and Council of Community Blood Centers.

Williams, Youle & Koenigs, P.C., Robert E. Youle, Denver, for amici curiae College of American Pathologists, American Soc. of Clinical Pathologists, and Colorado Soc. of Clinical Pathologists.

Vinton, Waller, Slivka & Panasci, Kevin D. Allen, Margaret M. McClellan, Denver, for amici curiae Colorado Trial Lawyers Ass'n and Ass'n of Trial Lawyers of America.

Justice QUINN delivered the Opinion of the Court.

In Quintana v. United Blood Services, 811 P.2d 424 (Colo.App.1991), the court of appeals reversed a judgment entered on a jury verdict for the defendant, United Blood Services (UBS), in a negligence action brought by the plaintiffs, Mrs. Susie Quintana and her husband, Chris Quintana. The Quintanas claimed that UBS, a blood bank, was negligent in supplying a hospital with plasma contaminated with the Acquired Immune Deficiency Syndrome (AIDS) virus and that, as a result of UBS's negligence, the contaminated plasma was given to Mrs. Quintana during surgery and that she subsequently became infected with AIDS. The court of appeals held that the trial court erred in construing section 13-22-104, 6A C.R.S. (1987), as imposing a professional standard of care on a blood bank in acquiring, preparing, and transferring human blood or its components for transfusion into a human being and that the trial court, in its evidentiary rulings and jury instructions, also erred by applying the professional standard of care in a manner that rendered UBS's compliance with the professional standard the equivalent of conclusive proof of reasonable care. In place of the professional standard of care applied by the trial court, the court of appeals reasoned that UBS's conduct "should be measured against what a reasonable and prudent blood bank would or should have done under the same or similar circumstances" and that, under that standard of ordinary care, compliance with governmental regulations and industrial customs and practices would merely constitute evidence of reasonable care and would not be conclusive proof on that issue. 811 P.2d at 431. We granted certiorari to review the decision of the court of appeals. We conclude, as did the court of appeals, that the Quintanas must be granted a new trial, but we do so for reasons different from those relied upon by the court of appeals.

I.

UBS is a non-profit blood banking division of Blood Systems, Inc., and operates blood centers throughout the western United States. In procuring whole blood, UBS relies strictly on volunteer donors and then processes the blood in the form of whole blood or blood components, such as red blood cells, platelets, and fresh frozen plasma, and supplies the blood or blood components to hospitals. In April 1983 UBS received blood from a donor and then processed the blood for use in medical treatment. The blood was transferred to Southwest Memorial Hospital in Cortez, Colorado.

Approximately one month later, May 27, 1983, Mrs. Quintana suffered a gunshot wound and was taken to Southwest Memorial Hospital, where she underwent emergency surgery. During the surgery she received several units of whole blood and fresh frozen plasma which had been collected and processed by UBS. Approximately one year after the surgery, Mrs. Quintana began to experience a number of symptoms consistent with the presence of the AIDS virus, and in November 1985 she tested positive for the virus. Mrs. Quintana subsequently developed AIDS-Related Complex (ARC), which precedes full blown AIDS, and she ultimately was diagnosed as suffering from AIDS. It was later determined that the donor of the unit of blood collected in April 1983 and given to Mrs. Quintana tested positive for the AIDS virus. UBS learned from the donor's physician that the donor pursued a "gay lifestyle."

Mrs. Quintana and her husband sued UBS for negligence. As pertinent here, the Quintanas predicated their negligence claim on UBS's failure to properly screen the blood donor for potential infection with the AIDS virus through the use of questioning and physical examination and in failing to properly screen the donated blood through surrogate testing. UBS claimed that its screening and testing procedures satisfied the applicable standard of care and denied the allegations of negligence. Much of the ensuing litigation was directed at resolving the appropriate standard of care applicable to UBS's operations. We summarize those aspects of the proceedings relevant to that issue.

A.

Prior to trial, UBS filed a motion to preclude one of plaintiff's expert witnesses, Doctor Marcus Conant, a dermatologist, from rendering an expert opinion on the standard of care applicable to UBS's blood banking operations. Doctor Conant had extensive experience in AIDS research and had treated between 3,000 and 5,000 patients who either had the AIDS virus, had AIDS-Related Complex, or had full blown AIDS. Doctor Conant served as co-director of the Kaposi's Sarcoma Clinic at the University of California from 1981 to 1985 and was director of the AIDS Clinical Research Center at the University of California from 1983 to 1985. Doctor Conant filed an affidavit stating that he was prepared to testify at trial to the following matters: as of January 1983 there was ample evidence available to the medical community and to national blood banks that the AIDS virus was transmissible in blood and blood products and that transfusion recipients were at risk of contracting AIDS if adequate precautions were not taken by blood banks in screening donors and performing surrogate tests on donated blood; that as of January 1983 there was ample evidence that the highest risk groups for AIDS were homosexual males, intravenous drug users, Haitians, and hemophiliacs and that these groups were known at that time to present the highest risk for transmitting the AIDS virus and thus needed to be more carefully screened and tested before being allowed to donate blood or, at the very least, before their donated blood was released for transfusion; that in early 1983 blood banks ignored the warnings and advice of AIDS experts and were negligent in not implementing more stringent screening and testing procedures then available, such as direct questioning of potential donors and surrogate laboratory testing of donated blood; that as of April 18, 1983, the date the contaminated blood in issue was donated, various segments of the blood banking community failed to take adequate steps and precautions to screen donors and test blood in order to protect the nation's blood supply from contamination with the AIDS virus; and that as of April 18, 1983, blood banks had inappropriately placed the privacy of blood donors over the safety of the nation's blood supply and the safety of transfusion recipients. 1

The trial court ruled that, pursuant to section 13-22-104(2), 6A C.R.S. (1987), the acquisition, preparation, and transfer of blood and its components for purposes of medical treatment is "the performance of a medical service" and that, consequently, the procedures utilized by UBS in 1983 to protect the blood supply against the risk of AIDS contamination must be evaluated according to the professional standard of the blood banking community rather than the general standard of reasonable care. Because Doctor Conant was not directly practicing in the blood banking industry, the court ruled that he would not be permitted to testify that the screening and testing procedures of the blood banking community were substandard and unreasonably deficient in safeguarding transfusion recipients from AIDS contamination.

B.

The case was tried to a jury over a four-week period in 1989. The trial testimony concerning the practices of the blood banking community in procuring and processing blood and the evidence relating to the etiology and epidemiology of AIDS provide the evidentiary framework for the issue before us.

The blood banking industry is involved in the collection, processing, testing, and storage of human blood and blood components. There are two organizational units within the industry, whole-blood centers and source plasma centers. The industry is regulated by the Food and Drug Administration and by the industry itself in the form of guidelines issued by organizations such as the American Association of Blood Banks, the American Red Cross, the Council for Community Blood Centers, and the American Blood Resource Association. 2 The American Association of Blood Banks, to which UBS belongs, accredits member blood banks on the basis of their compliance with its guidelines.

Whole-blood centers collect and process units of whole blood--that is, blood that has not been broken down into its constituent parts--from voluntary donors. Most of the blood collected is separated by the whole blood centers into individual blood components, such as red blood cells, platelets or plasma. Whole blood is occasionally transfused, but patients more frequently receive transfusions of the individual blood components. Source plasma centers pay their donors to obtain what is referred to as source plasma by a procedure called plasmapheresis. This process, which is more time consuming than the donation of whole blood, involves removing the donor's blood, separating out the plasma, and then returning the red blood cells to the...

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