Subject: AIDS Suits Focus on Blood Safeguards
Date: Published: 8/20/84 112 lines
Source:  Wall Street Journal.  Copyright Dow Jones Inc. 

   AIDS Suits
   Focus on Blood
   Safeguards
    ---
   By Marilyn Chase
   Staff Reporter of The Wall Street Journal

   Some new lawsuits arising from AIDS -- acquired immune
deficiency syndrome -- are heading for a collision with state
laws that protect blood transfusions from product liability
claims.
   AIDS, an incurable and usually fatal disease, primarily
strikes homosexuals, Haitians, drug addicts and recipients of
blood.  Now some members of this last group, victims of
transfusion AIDS, are turning to the courts for compensation.
   But laws in 45 states define blood as a service, not a
product.  This means that people who collect and administer
blood are shielded from liability unless negligence is
proven.  These state laws were passed during the 1970s in
response to the transmission of another disease, hepatitis,
through blood transfusions.
   The new AIDS suits may force states to reexamine their
laws on blood transfusions and may also encourage greater
efforts to find a reliable and inexpensive test for AIDS. 
   Daniel Gallagher, a 32-year-old lawyer from Los Gatos,
Calif., is one of the transfusion litigants.  Mr. Gallagher, a
hemophiliac, says he contracted AIDS when he was given
tainted Factor VIII, a blood plasma derivative used to treat
hemophilia.  He is suing the maker of the plasma, Cutter
Laboratories, a unit of Bayer AG's Miles Laboratories Inc.,
for $3 million.
   "Three million dollars isn't enough," says Robert Morgan,
Mr. Gallagher's lawyer.  "He's a man with a death sentence."
   Mr. Gallagher's suit alleges that Cutter Laboratories
"failed to properly screen donors and test the blood for
impurities or disease."  But Cutter's attorney, Duncan Barr of
San Francisco, says there's still no certain way to screen
blood for AIDS. To hold Cutter liable for transmitting a new
virus "is a burden the industry can't possibly shoulder," he
says.
   Some AIDS victims and their families now feel that blood
should no longer be exempted from product liability laws.  "If
you buy a lawn mower and the blade falls off, you can sue,"
says Jerrold Kushnick, whose three-year-old son died last
October of AIDS.  "Blood should be subject to the same high
standard as a lawn mower."
   Mr. Kushnick and his wife have sued Cedars-Sinai Medical
Center in Los Angeles, alleging that their son, born
prematurely, received "defective blood" and negligent care.
   The attorney for Cedars-Sinai, Alan Rushfeldt, says there
was "no negligence on the part of Cedars and its staff.  The
law is very clear in California:  Blood is a service and not a
product.  There's no doubt that will be an issue in the case."
   But another AIDS plaintiff's attorney, Leonard L. Finz,
calls the laws limiting liability for blood "a fiction ...
by legislative fiat."  He represents the family of a Brooklyn
woman in a $42 million wrongful death lawsuit against Long
Island College Hospital.  Mr. Finz also says that laws written
in response to hepatitis should not be applied to AIDS
because the diseases are so different:  One is survivable, the
other is fatal.
   Joel Glass, the attorney for Long Island College Hospital,
argues that until last spring, when two related and possibly
identical AIDS viruses were discovered, "there was no test to
identify AIDS in blood."
   Now half a dozen companies are racing to develop and
market diagnostic kits for screening blood.  Although they
will probably be available by early next year, they will be
too late to help current victims of transfusion AIDS. 
   Several tests that indirectly screen for AIDS are being
used at Stanford University Medical Center and a few other
places.  These so-called surrogate tests, like the hepatitis B
core antibody test and the T-cell test, turn abnormal in most
AIDS patients.  But many blood banks won't use these tests,
even as a stopgap measure, because they are expensive and
sometimes turn out positive even when people don't have AIDS. 
That means some good blood gets thrown out.
   Even the American Red Cross Blood Services, which supplies
half the nation's blood and sets a standard of practice in
blood collection, won't use the surrogate tests.  "I don't
think there's any new information to make it a new
situation," says Dr. Alfred Katz, the executive director.
   But opposition to these tests is slowly eroding.
Cedars-Sinai, a defendant in the Kushnick suit, has begun
investigating two tests that may detect the virus even in its
latent stages.  "We were skeptical a few months ago, but we're
less skeptical now," says Stuart Marylander, president of
Cedars-Sinai.  He says new scientific evidence about the
suspected AIDS agent, not litigation, has changed the
hospital's position.
   Another convert is Irwin Memorial Blood Bank in San
Francisco, which has had two cases of transfusion AIDS but no
lawsuits.  Irwin Memorial started doing the hepatitis B core
antibody test last May and will "continue to do that until we
have a better test," says Brian McDonough, executive
director.
   Cutter Laboratories, too, has begun testing plasma it
purchases for hepatitis core antibody.  Cutter spokesman Bud
Modersbach says the test spots AIDS with 80% to 90% accuracy,
and is "more objective" than asking people to exempt
themselves based on their sexual preferences, the practice at
most blood banks.  With the hepatitis test, he says, "you
might say the blood screens itself."

[This article is made available here by Dow Jones Co. for the 
personal and non-commercial use of callers to this bbs, in the 
hope that it will be of some help to those who are suffering 
from the disease and others who are seeking to help them.]