Weigand v. University Hosp. of New York University Medical Center

• Citation: 659 N.Y.S.2d 395,172 Misc.2d 716
• Parties: Rosa WEIGAND, Individually and as Executrix of Mike Weigand, Deceased, Plaintiff, v. UNIVERSITY HOSPITAL OF NEW YORK UNIVERSITY MEDICAL CENTER, et al., Defendants.
• Decision Date: 01 April 1997
• Court: United States State Supreme Court (New York)

Page 395

659 N.Y.S.2d 395

172 Misc.2d 716

Rosa WEIGAND, Individually and as Executrix of Mike Weigand Deceased, Plaintiff, v. UNIVERSITY HOSPITAL OF NEW YORK UNIVERSITY MEDICAL CENTER et al., Defendants.

Supreme Court, New York County.

April 1, 1997.

Skadden Arps Slate Meagher & Flom, New York City, for American Association of Blood Banks, defendant.

Bower Sanger & Futterman, P.C., New York City, for Stephen Colvin, defendant.

Jay B. Ringel, New York City, for plaintiff.

KARLA MOSKOWITZ, Justice.

I. Background

This action involves a death from Acquired Immune Deficiency Syndrome ("AIDS"), allegedly caused by a transfusion of blood contaminated with the Human Immunodeficiency Virus ("HIV"). The transfusion took place during triple coronary artery bypass surgery at University Hospital of New York University Medical Center ("University Hospital") in February 1983. In addition to suing University Hospital, University Hospital Blood Bank ("Blood Bank") and decedent's physician, plaintiff has also sued the blood-banking industry's national trade association, the American Association of Blood Banks ("AABB"), which now moves to dismiss the complaint pursuant to CPLR §§ 3013 and 3211(a)(7).

The complaint contains four causes of action. In the first count, plaintiff claims essentially that AABB negligently established deficient blood collecting standards that were not in keeping with the state of scientific knowledge, that the alleged transmission of HIV to the decedent resulted from the collection of blood in accordance with such negligently established standards and that plaintiff was damaged as a result. The second cause of action seeks further damages as a result of the same conduct for financial and economic benefits that would have accrued to plaintiff's estate had decedent lived. In the third and fourth causes of action, plaintiff claims that defendants failed to advise decedent and his family of the option of donating his own blood or obtaining family blood donations and failed to warn decedent of the risk of HIV transmission from blood and plasma transfusions.

AABB's motion to dismiss is directed at both the adequacy of plaintiff's pleadings and the legal duties and responsibilities, if any, of AABB to the recipient of a blood transfusion. ¹ As to the adequacy of the pleadings, the court finds they are sufficient to give defendant AABB notice of plaintiff's claims. As to AABB's duty in setting standards for blood collection, the court relies in part on the reasoning of the Supreme Court of New Jersey in Snyder v. American Assn. of Blood Banks, 144 N.J. 269, 676 A.2d 1036, decided under New Jersey law after a jury verdict, and concludes that, under New York law, a trade association setting standards and guidelines for the collection of blood owes a duty to the ultimate recipient of that blood. As to the other causes of action asserted against AABB, the court concludes that AABB had no duty to advise decedent and his family of his medical options or to warn decedent of the risks of transmission.

Accordingly, for the reasons set forth below, defendant AABB's motion to dismiss plaintiff's first and second causes of action is denied. Its motion to dismiss the third and fourth causes of action is granted.

II. Discussion

A. First Cause of Action: Negligence in Setting Standards

1. Failure to Allege a Cause of Action

Plaintiff alleges that defendant AABB negligently established blood collection standards that were deficient and not in keeping with the state of scientific knowledge at the time the blood for decedent's transfusion was collected. Plaintiff alleges further that either University Hospital or Blood Bank collected the blood received by decedent Weigand in accordance with those deficient standards and that the blood contained HIV and other viruses that ultimately caused decedent's death.

As a partial basis for its motion to dismiss this cause of action, AABB asserts that, in counts one and two, the complaint fails to plead essential elements of a negligence cause of action, i.e., that AABB owed a duty to decedent, that AABB's standards proximately caused the transmission of a virus to decedent and that defendant AABB had and negligently exercised control over the other defendants, thereby causing decedent's injuries.

CPLR § 3211(a)(7) provides: "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that ... the pleading fails to state a cause of action." The sufficiency of a pleading generally depends on whether there is substantial compliance with CPLR § 3013 (Foley v. D'Agostino, 21 A.D.2d 60, 62-63, 248 N.Y.S.2d 121), which provides: "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense."

The "essential facts required to give 'notice' must be stated" (Foley, supra, at 63, 248 N.Y.S.2d 121). "Pleadings should not be dismissed or ordered amended unless the allegations therein are not sufficiently particular to apprise the court and parties of the subject matter of the controversy" (Id., quoting 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., p 3013.03). The court's inquiry is limited to determining whether the complaint states any cause of action, not whether there is evidentiary support for it (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635-636, 389 N.Y.S.2d 314, 357 N.E.2d 970).

A pleading is deemed to "allege 'whatever can be implied from its statements by fair and reasonable intendment' ... The question ... is whether [there] 'can be fairly gathered from all the averments' ... the requisite allegations of any valid cause of action cognizable by the state courts" (Dulberg v. Mock, 1 N.Y.2d 54, 56, 150 N.Y.S.2d 180, 133 N.E.2d 695, quoting Condon v. Associated Hosp. Serv., 287 N.Y. 411, 414, 40 N.E.2d 230).

In the complaint, plaintiff alleges, as part of the first cause of action, that the standards for the collection and screening of blood were "negligently established by defendant AABB," that Blood Bank, in collecting and screening blood, adhered to those standards and that adherence to those standards resulted in the transmission of HIV and other viruses to plaintiff's decedent, causing his death from AIDS (Complaint at pp 15-20, 22, emphasis added). Implied in an allegation of negligence is an allegation of the elements of that cause of action (a duty owed by defendant to plaintiff, a breach of that duty and an injury proximately caused by that breach of duty).

The court finds that the complaint, as drafted, sets forth the transactions and occurrences on which plaintiff bases her negligence claim sufficiently to give defendant AABB notice of that claim and to enable AABB to defend against it. Accordingly, defendant's motion to dismiss based on plaintiff's failure to plead a cause of action in negligence is denied.

2. Existence of a Duty

As an additional basis for its motion to dismiss, defendant AABB asserts that, even if the elements of a negligence claim regarding promulgation of its standards have been pleaded, the complaint fails to state a cause of action against AABB, because AABB owed no duty to plaintiff or her decedent, it had no relationship with plaintiff or decedent and it neither had nor exercised control over University Hospital, Blood Bank or the defendant doctor.

When plaintiff's allegations, if taken as true, do allege a cause of action, dismissal with prejudice under CPLR § 3211(a)(7) is proper only when it is clear that a material element does not exist (see Renel Constr. Inc. v. Brooklyn Coop. Meat Distr. Ctr. Inc., 59 A.D.2d 391, 396, 399 N.Y.S.2d 429, affd., 46 N.Y.2d 859, 414 N.Y.S.2d 511, 387 N.E.2d 222). Here, defendant AABB asserts that the element of duty on the part of AABB does not exist. The court disagrees.

The existence of a "duty owed by one member of society to another is a legal issue for the courts" (Eiseman v. State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128). "[A]bsent legislative intervention, the fixing of the 'orbit' of duty ... is the responsibility of the courts" (De Angelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406). The court in De Angelis stated further that:

Duty is essentially a legal term by which we express our conclusion that there can be liability (see, generally, Green, The Duty Problem in Negligence Cases, 28 Col.L.Rev. 1014). It tells us whether the risk to which one person exposes another is within the protection of the law. In fixing the bounds of that duty, not only logic and science, but policy play an important role (Becker v. Schwartz, 46 N.Y.2d 401, 408, 413 N.Y.S.2d 895, 386 N.E.2d 807; Ventricelli v. Kinney System Rent A Car, 45 N.Y.2d 950, 411 N.Y.S.2d 555, 383 N.E.2d 1149; Pagan v. Goldberger, 51 A.D.2d 508, 510, 382 N.Y.S.2d 549; Ortiz v. Kinoshita & Co., 30 A.D.2d 334, 336-337, 292 N.Y.S.2d 48; Prosser, Torts [4th ed.], § 42, pp. 244-249).

(Id. at 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406). "While moral and logical judgments are significant components of the analysis, [the court is] also bound to consider the larger social consequences of [its] decisions and to tailor [its] notion of duty so that 'the legal consequences of wrongs [are limited] to a controllable degree' " (Eiseman v. State of New York, supra, at 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128, quoting Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 229, 513 N.Y.S.2d 356, 505 N.E.2d 922).

The decisions relied on by defendant AABB (Beasock v. Dioguardi Enters., Inc., 130 Misc.2d 25, 494 N.Y.S.2d 974; Howard v. Poseidon Pools, Inc., 133 Misc.2d 50, 506 N.Y.S.2d 523; Meyers v. Donnatacci, 220 N.J.Super. 73, 531 A.2d 398) are inapposite. In Beasock, supra, the court held that a manufacturers' trade association was not liable in negligence for...