HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/BRADWAY.ASC

Text File | 1993-01-14 | 12KB | 248 lines

/* This case is reported in 426 S.E.2d 849 (Ga. 1993).  In this
case, the State Court responds to a request on a certified
question from the U.S. appeals courts and finds that a case for
blood contamination is one for medical malpractice and therefore
subject to the statute of limitations. */

BRADWAY et al.

v.

AMERICAN NATIONAL RED CROSS.

Supreme Court of Georgia

March 8, 1993.

Reconsideration Denied March 25, 1993.



Hunt, presiding justice.

In this certified question from the Eleventh Circuit Court of
Appeals, 965 F.2d 991, we are asked:

Is a suit alleging that a not-for-profit blood bank was negligent
in collecting and supplying human blood-including screening
volunteer blood donors and testing blood for the presence of
human immunodeficiency virus (HIV) -- an action for medical
malpractice and thus subject to Georgia's statutes of limitation
and repose for medical malpractice actions, OCGA  9-3-71?

We answer the question in the affirmative.

The relevant facts, as certified by the Eleventh Circuit, are as
follows:

On April 7, 1983, doctors at the Emory University  Hospital
(Emory  Hospital) transfused two units of whole blood into Carol
Bradway after performing reconstructive surgery on Ms. Bradway.
Emory Hospital obtained the blood from the American National Red
Cross (the Red Cross), a charitable, not-for-profit organization
operating "blood banks," i.e., facilities engaged in the
collection of human blood from volunteer donors for distribution
to organizations providing medical services.  See OCCA  31-22-
1(2) (1991). The Red Cross had no direct contact with Ms. Bradway
but merely provided blood to Emory Hospital for use in Ms. Brad-
way's treatment.

On July 19,1988, Ms. Bradway's doctor informed her that she was
infected with the Human Immunodeficiency Virus (HIV).  On April
19,1989, Ms. Bradway and her husband, David Bradway, filed a
complaint in Georgia state court alleging that the Red Cross was
negligent in screening blood donors and in testing blood samples
for the presence of HIV; specifically, the Bradways contend that
the Red Cross, by not asking potential blood donors whether they
are homosexuals, negligently failed to identify individuals
possessing a high risk of being infected with HIV.  The Bradways
seek compensatory damages.

Pursuant to 28 U.S.C.  1441, 1446 (1988) [footnote omitted], the
Red Cross removed the Bradway's action to the United  States
District  Court  for  the Northern District of Georgia.  The Red
Cross then moved the district court to dismiss the Bradway's
action because, according to the Red Cross, Georgia's statutes of
limitation and ultimate repose for medical malpractice suits
barred their suit. See OCGA  9-3-71 (1991 Cumulative Supp.)
(Georgia's statutes of limitation and ultimate repose) [footnote
omitted]; see also id.  93-70 (1982) (defining "action for
medical malpractice") [footnote omitted]. The Bradways responded
that they did not bring an action alleging medical malpractice
but rather "ordinary"  negligence.  The district court,
concluding that under Georgia law "an action against a blood bank
for the negligent collection and supply of human blood is an
action for medical malpractice," granted the Red Cross' motion
and dismissed the case.

The  Bradways appeal the district court's dismissal of their
suit. The Bradways contend that the district court erred by
holding that Georgia's statutes of limitation and ultimate repose
for medical malpractice suits apply to a suit alleging ordinary
negligence in screening blood donors and in testing blood
samples.  According to the Bradways, the district court
incorrectly treated their case as an action alleging medical
malpractice rather than "ordinary" negligence.

We are convinced that the steps involved in the collection,
processing and distribution of blood by the Red Cross constitute
a professional medical service.  The procedures for the
collection of blood, including donor screening and blood testing,
are the product of professional medical expertise. Federal law
mandates that screening procedures for determining the
suitability of a donor as a source for blood are to he developed
by a qualified physician or trained personnel under the
supervision of a qualified physician.  21 CFR 640.3(a).  In
compliance with Federal regulations, Red Cross physicians devise
screening procedures intended to ensure the safety of the blood
product and the transfusion process.  A crucial part of the
screening procedure developed by the physicians is the medical
history interview.  In this interview, prospective donors are
asked questions de signed to elicit information necessary for an
effective evaluation of the donor; the formulation of these
questions requires substantial medical knowledge and judgment.

The screening procedures developed by the physicians are carried
out by licensed nurses, who also draw blood through phlebotomy, a
medical procedure, and conduct a limited physical examination.
Trained laboratory personnel serologically test the collected
blood for blood type and a variety of infectious diseases. Blood
may also be separated into different components, such as plasma
and platelets, and processed.  All blood products must be labeled
and stored for ultimate distribution to medical facilities for
transfusion purposes.  Thus, by their very  nature, the services
provided by the Red Cross are medical services involving medical
judgment. [footnote 1]  Accordingly, the action brought against
the Red Cross is one for medical malpractice under OCGA  9-3-70
and is subject to our statute of limitation and repose, OCGA  9-3-
71. [footnote 2] Our conclusion in this regard is borne out by
many decisions in other jurisdictions. [footnote 3]

An examination of the claim itself bears out our determination
that the case before us is one involving medical malpractice and
not ordinary negligence. [footnote 4]  The injury in this case
did not result from negligence on the part of the administering
nurses; there is no allegation that the nurses did not follow
established procedure or that the nurses made mistakes in
conducting the screening interviews.  Compare Candler General
Hospital, Inc. v. McNorrill, 182 Ga.App. 107, 110, 354 S.E.2d 872
(1987). Indeed, it is specifically stated that the nurses
followed  standard  Red  Cross screening procedure; the claim is
that the Red Cross did not ask questions that would allow it to
identify high risk individuals. The problem, then, is with the
questions, not the questioners. The injury complained of here
stems from the alleged failure of the questions to provide for
effective elimination of high risk donors.  These questions are,
as we have said, the product of medical knowledge and judgment.
[footnote 5]  Thus, again, we deal with medical malpractice, not
with ordinary negligence. [footnote 6]

Certified question answered in the affirmative.



CLARKE, C.J., and BENHAM, FLETCHER, SEARS-COLLINS and HUNSTEIN,
JJ. concur.

Affirmed.



FOOTNOTES:

1.   There is, by implication, support for our position in the
Code of Georgia.  Most of the Red Cross personnel involved in the
various steps we have outlined above must be licensed as profes
sionals under Title 43 of the Georgia Code.  In addition, under
OCGA  31-22-1(2), the term "clinical  laboratory"  includes blood
banks which provide through their ownership or operation a system
for the collection, processing, or storage of human blood and its
component parts.  Clinical laboratories are, under OCGA  31-22-
9.1(a)(8), health care facilities.

2.   OCGA  9-3-70 states:

As used in this article, the term "action for medical
malpractice" means any claim for damages resulting from the death
of or injury to any person arising out of.

(1)  Health, medical, dental, or surgical service, diagnosis,
prescription, treatment, or care rendered by a person authorized
by law to perform such service or by any person acting under the
supervision and control of the lawfully authorized person; or

(2)  Care or service rendered by any public or private hospital,
nursing home, clinic, hospital authority, facility, or
institution, or by any officer, agent, or employee thereof acting
within the scope of his employment.

OCGA  9-371 states:

Except as otherwise provided in this article, an action for
medical malpractice shall be brought within two years after the
date on which the negligent or wrongful act or omission occurred.

3. See, e.g., Smith v. Paslode Corporation, 799 F.Supp. 960
(E.D.Mo.1992) ("[T]he uncontradicted evidence in the present case
shows that nearly every step in the ARC's collection, processing
and distribution of blood requires medical expertise."); Doe v.
American National Red Cross, 796 F.Supp. 395 (W.D.Wis.1992) (In
applying broad construction, court said "it would be difficult to
conclude that in collecting, processing, and distributing blood
from donors for ultimate use in transfusions, defendant is not
providing health care to others."); United Blood Services v.
Quintana, 827 P.2d 509, 523 (Colo.1992) ("The acquisition and
preparation of human blood for use in medical transfusion and the
safeguarding of donated blood against contamination require the
exercise of medical and scientific expertise by health care
professionals in both the donor screening and the blood testing
stages of the process.  Any alleged negligence of a blood bank in
performing those operations can occur only by reason of the
action or inaction of its officers and employees functioning as
health care professionals."); Wilson v. American Red Cross, 600
So.2d 216 (Ala.1992) (Red Cross is directly involved in the
delivery of health care services since its activities are highly
technical and require supervision and participation by a
physician and other trained technical personnel);  Tularo v.
Methodist Hospital, Inc., 368 So.2d  1219 (La.App.1979) (because
a blood transfusion is a medical procedure, "the standard of care
that must be utilized in collecting and transfusing blood is
logically the same as that which applies to the actions of
physicians and surgeons."); Coe v. Superior Court. 220 Cal.
App.3d 48, 269 Cal.Rptr. 368, 371(1990) (Blood banks provide a
service "inextricably identified with the health of humans.");
Doe v. American Red Cross Blood Services, SC. Region, 297 S.C.
430, 377 S.E.2d 323, 326 (1989) ("[S]ince the transfusion of
blood is characterized as a skilled medical service, then we hold
that the Red Cross, as a blood collector and processor, should be
treated as a professional.").

4.   Policy reasons also support our decision in this matter.
OCGA  51-1-28 provides that the transfusion or other transfer of
human blood is to be considered, not a sale of goods, but a
rendition of medical services. thus precluding actions sounding
in strict products liability. In McAllister v. American National
Red Cross, 240 Ga. 246, 240 S.E.2d 247 (1977), we held that the
protection provided by this code section applied not only to
hospitals but also to entities like the Red Cross which supply
blood for human use The rationale for these 'blood-shield
statutes" is to protect competent and carefully operated blood
banks helping to meet an urgent need for blood and blood products
from "crippling legal liability." 240 Ga. at 249, 240 S.E.2d 247.

S.   This is so even if. as the Bradways assert. the decision not
to ask certain questions in screening donors was politically.
ethically. or legally motivated,  They would still have to demon
strate that the omission of those questions was both medically
unsound and resulted in the acquisition of unsafe blood. both of
which are medical issues.

6.   It would also seem that any consideration of the validity
and effectiveness of the questions employed in the screening
process would constitute a medical question requiring expert
testimony. See, e.g., Cherokee County Hospital Authority v.
Beaver, 179 Ga.App. 200. 345 S.E.2d 904 (1986).