Subject: Ruling May Open Blood Banks To AIDS Liability in Early 1980s 
Date: Published: 4/27/92 (103 lines)
Source: Wall Street Journal. Copyright Dow Jones & Co. Inc.

    Law -- Legal Beat:
    Ruling May Open Blood Banks
    To AIDS Liability in Early 1980s
    ----
    By Wade Lambert and Milo Geyelin
    Staff Reporters of The Wall Street Journal

    A decision by an influential state court could expose
 blood banks to liability for not protecting patients from
 AIDS in the early 1980s.
    Rejecting the idea that only professionals could evaluate
 medical standards, the Colorado Supreme Court said it is up
 to a jury of lay people to decide whether the blood-bank
 industry's standards were reasonable in the years before a
 reliable blood test became available.
    The decision reopens an issue that many in the medical
 field considered closed.  Most courts across the country have
 ruled that blood banks were not liable for contaminated blood
 prior to April 1985, when the first test was approved to
 screen blood for HIV, the virus that causes AIDS.  These
 courts have found that the blood banks had met the
 professional standards of the time and couldn't have been
 expected to do more.
    But attorneys for transfusion recipients with HIV claim
 that blood banks should have taken additional steps to
 protect patients in 1983 and 1984.  "It's unfortunate that the
 public has been led to believe that there was nothing that
 could be done before 1985," said Maureen Reidy Witt, an
 attorney for the patient in the Colorado case.
    While not taking a stand on whether the industry's
 standards were adequate, the Colorado high court said that
 patients should be allowed to make their case to a jury.  The
 court said that the jury should be allowed to hear expert
 testimony "establishing that the national blood banking
 community's standard of care was itself unreasonably
 deficient in not incorporating available safeguards designed
 to provide substantially more protection against the risk of
 infecting a transfusion recipient with AIDS.  "
    In the Colorado case and others, plaintiffs' attorneys
 maintain that the blood-bank industry by early 1983 had
 received enough warnings about possible AIDS transmission to
 adopt stronger measures to weed out blood donors infected
 with HIV.  For instance, the federal Centers for Disease
 Control in December 1982 said studies had raised "serious
 questions about the possible transmission of AIDS through
 blood and blood products."  And in March 1983, the Food and
 Drug Administration recommended that donors should be asked
 specific questions about their health to determine whether
 they might have been exposed to AIDS.  
    Ms. Witt, who declined to discuss details of the Colorado
 case, said that, in general, blood banks should have examined
 donors for symptoms of HIV infection, such as swollen lymph
 glands, and questioned them confidentially about drug use and
 sexual behavior.  AIDS is most commonly transmitted sexually
 and through intravenous drug use.
    In court documents, the attorneys for the Colorado patient
 argued that the blood bank, United Blood Services, as well as
 others in the industry, didn't adopt the more aggressive
 questioning and physical examination that some studies called
 for.  As a result, they allege, the patient was infected with
 HIV in a transfusion in May 1983.
    The blood banks have maintained that they were doing
 everything reasonably expected to prevent the transmission of
 AIDS.  
    Arthur H. Downey, an attorney in Denver for United Blood
 Services, a division of Blood Systems Inc. of Scottsdale,
 Ariz., said that at the time, "All we knew was that there
 were certain high-risk groups who were believed to be more
 likely to be carrying the HIV virus ...and we had asked
 questions about all of those things" to weed out donors in
 those groups.
    In a friend-of-the-court brief in the Colorado case, the
 American Red Cross said that industry standards at the time
 were sufficient and shouldn't be addressed by a jury.  The
 American Red Cross is a defendant in many blood-transfusion
 cases but not the one in Colorado.
    "Virtually every blood-bank negligence case in the country
 has held that compliance with the standards used by other
 blood collectors constitutes due care," the American Red
 Cross said in the brief.  It added that the trial court had
 been correct in rejecting the patient's "hindsight attack on
 the standards developed by the national blood service system
 in response to AIDS."  The trial court dismissed many of the
 patient's allegations about industry standards.  The patient
 appealed the decision.
    But the state's high court said that meeting industrywide
 standards at the time wasn't necessarily enough to avoid
 negligence, "given the growing suspicion in the early months
 of 1983 that the AIDS virus might be transmitted through
 blood or blood components."
    The court ruled, "A blood bank is liable in negligence .  .
 .  when it fails to make use of, or makes unreasonable use of,
 available and proven scientific safeguards."
    (United Blood Services vs. Quintana, Supreme Court of
 Colorado, No. 91SC172)

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