HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/SNYDER-M.ASC

Text File | 1993-01-14 | 32KB | 573 lines

/* This case is reported in 582 A.2d. 307 (N.J. Superior 1990).
In this case, the court permits the discovery of limited
information concerning the donors of contaminated blood. */

William SNYDER and Roslyn Snyder, Plaintiff - Appellants,

v.

Haroutune MEKHJIAN, M.D., individually; Haroutune Mekhjian, M.D.,
P.C.; Youngick Lee, M.D.; Wilmo Orejola, M.D.; St. Joseph's
Hospital; St. Joseph's Blood Bank; Bergen Community Blood Center;
American Association of Blood Banks, Defendants-Respondents.

and

Anthony Losardo, M.D.; Leonard Savino, Thil Yoganathan, M.D.;
John Klian, M.D.;  Molly Zachariah, M.D.; Thomas Raymundo, M.D.;
John Doe, M.D., a Fictitious Name; Richard Roe, M.D., a
fictitious name; John Roe, M.D., a Fictitious Name; John Smith,
M.D., a Fictitious Name; John Jones, M.D.. a Fictitious Name;  W
Blood Bank, a Fictitious Name;  Z Blood Bank, a Fictitious Name;
XYZ Blood Bank, a Fictitious Name; Jane Doe, a Fictitious Name;
Richard Roe, a Fictitious Name; Joseph Williams, a Fictitious
Name; Joseph Rogers, a Fictitious Name; Gregory Smith, a
Fictitious Name; Joseph Smith, a Fictitious Name; Jane Smith, a
Fictitious Name; William Smith, a Fictitious Name; Individually
and as Agents, Employees and Servants of St. Joseph's Hospital,
Defendants.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 2, 1990.

Decided Oct. 30,1990.

The opinion of the court was delivered by

PRESSLER, P.J.A.D.



The fundamental issue raised by this action is whether liability
attaches to anyone, and if so to whom and under what legal
theory, when a surgical patient contracts Acquired Immune
Deficiency Syndrome as a result of transfusion with contaminated
blood supplied by a non-profit blood bank. We granted plaintiffs
leave to appeal from the trial court's interlocutory order
dismissing the strict liability counts against all defendants,
and we now affirm that order. We also granted plaintiffs' motion
for leave to appeal from the interlocutory order denying their
motion for discovery from the blood bank of the infected donor's
identity, medical records, and recollections of the screening
process to which he was required to submit before his donation
was accepted.  We reverse the order denying discovery subject to
the protective conditions hereafter described.

Plaintiff William Snyder, whose wife Roslyn sues per quod,
underwent elective coronary artery by-pass surgery and an aortic
valve replacement at St. Joseph's Hospital in Paterson on August
23, 1984.  The surgery was performed by defendants Youngick Lee
and Wilmo Orejola.  Some hours after the original surgery, a
second surgical procedure was performed to repair a bleeding
artery.  During this procedure plaintiff was infused with, among
other blood products, a unit of platelets, identified as serial
number 29F0784, which had been supplied to St. Joseph's by
defendant Bergen Community Blood Center (BCBC), a non-profit
collector and distributor to hospitals of donated blood.
Plaintiff's recuperation proceeded uneventfully, and he was
discharged from the hospital several weeks later.

In April 1984 the HTLV-III virus (HIV) was identified as the
cause of AIDS.  By March, 1985, tests were available which
enabled the nation's blood banks to screen all donated blood for
antibodies.  This screening process was attended by a nation-wide
"Look Back" program by which the blood banks were able to
determine whether a now-identifiable HIV-positive donor had given
blood prior to March 1985 and, if so, to which hospital that
donor's blood had been supplied.  In October 1986, BCBC wrote to
St. Joseph's to advise that unit number 29f0784, supplied by it
to the hospital on August 23, 1984, had come from a donor now
testing positive for HIV antibodies.  The hospital, by review of
its records, ascertained that plaintiff had received that unit,
and in April, 1987, it so advised his physician, offering the
hospital's resources should further testing of the patient and
counseling services be required.  According to the physician's
note on the hospital's follow-up report, he determined that:

Recipient [plaintiff] now lives in Florida. Prior to my notifying
him he was tested in response to the CDC [Center for Disease
Control] recommendation that all recipients be tested. His tests
were positive. His wife and two sons were subsequently tested and
found to be negative. He is being counseled by a physician in
Florida.   The  recipient  has  no  risk factors.

Plaintiff instituted this action in February 1989 against the
hospital, the physicians involved in his diagnosis and treatment,
BCBC, and the American Association of Blood Banks (AABB).  AABB
is a national non-profit association of non-profit blood banks,
whose members, of which BCBC is one, collect about half of the
country's donated blood.  The American Red Cross collects the
other half. As we understand the record, AABB collects and
disseminates relevant scientific and administrative information
to its thousands of members, prescribes standards for their
operations, and speaks for them.

Plaintiff asserted a strict liability claim against all
defendants, contending that at the time of his transfusion,
laboratory tests as well as donor screening techniques were
available which, had they been employed, would have screened out
HIV-positive donors and rendered the supply of donated blood
safe  from  AIDS  contamination. AABB did not, however, recommend
their use to its members, and BCBC did not use them. Plaintiff
claims that since the blood he received from BCBC could have been
made safe, all those in the chain of collection and distribution
of the infected blood he did receive should be held strictly
liable for providing him with a defective product.

Plaintiff also asserted negligence claims against all defendants.
His claims against the physicians are based on the assertion of
professional negligence in not advising him of the risk of
receiving contaminated blood and of the option either to collect
his own blood for transfusion prior to the surgery (autologous
transfusion) or to arrange to have blood available from family
members or other known donors (direct donor transfusion).  He
also claimed that it was the negligence of Dr. Mekhjian and his
assistants in failing to repair the bleeding artery during the
original surgery which caused the necessity for the second
surgery and the consequent contaminated transfusion.

Plaintiff's negligence complaint against the BCBC and AABB was
based on the state of scientific knowledge respecting AIDS, its
diagnosis and transmission at the time of his transfusion.  He
alleged that these defendants greatly enhanced his risk of
receiving contaminated blood by failing to prescribe and
implement available risk-reducing procedures in the blood
collection process. He also asserted that BCBC negligently failed
to follow such screening procedures as it did then have in place,
inadequate as they may have been. He claimed that but for   that
negligence, BCBC would have rejected the infected donor's blood.
Plaintiff also asserted consumer fraud and punitive damages
claims against these defendants based on their alleged knowing
and irresponsible failure to protect the blood supply from AIDS
contamination.

On summary judgment motions by defendants, the following
dispositions ensued: 1) the consumer fraud and strict liability
claims as against all defendants were dismissed; 2) all claims
against St. Joseph's Hospital were dismissed; 3) the punitive
damage claims against the physicians were dismissed. The claims
which survived are the  negligence  claims  against  AABB, BCBC
and the surgeons and the punitive damage claims against AABB and
BCBC. In addition, the court ruled that BCBC was not entitled
either to charitable immunity pursuant to N.J.S.A. 2A:53A-7 or to
the $10,000 damages limitation of N.J.S.A. 2A:53A-8. Finally, by
separate order, the court denied plaintiff's application for
production by BCBC of its records of the anonymous donor of unit
number 29F0784.



Plaintiff sought leave to appeal only from the dismissal of the
strict liability' claims and the denial of the donor discovery
motion. No defendant sought leave to appeal from any ruling
adverse to it. Consequently strict liability and discovery of the
donor records are the only issues now before us.

[1]  Consideration of the strict liability claims requires a
brief foray into the relevant scientific facts as they were known
in August 1984 and the manner in which they, were responded to by
the nation's blood-banking organizations.  As appears from the
experts' materials included in the record on the summary judgment
motions, the critical period of AIDS contamination of the blood
supply was from mid-1981, when the first AIDS cases were
diagnosed, to March 1985, when the first test for HIV virus
antibodies was developed and in place.  According to the
scientific data in the record, both the Center for Disease
Control (CDC) and the Public Health Service Committee on
Opportunistic Infections had, prior to the end of 1982, reported
to the blood banking community the likelihood that AIDS was
transmissible through blood, products.  It was also by then
reported that the major risk groups for AIDS included homosexual
males, intravenous drug users, recently emigrated Haitians and
hemophiliacs.  In early January 1983, CDC held a meeting attended
by among others, representatives of the blood-banking industry,
the National Gay Task Force and the National Hemophilia
Foundation. Its summary report of the session noted the
reluctance of "some participants ... to accept the hypothesis
that AIDS has been transmitted by whole blood," but nevertheless
reported a consensus "that it would be desirable to exclude high-
risk donors to reduce the risk of AIDS transmission via blood and
blood products."

CDC also reported the then availability of several surrogate
laboratory tests for AIDS, including the Hepatitis B Core
Antibody Test and the T4, T8 Ratio Test. As we understand the
record, a surrogate test in this context is one which does not
reveal the presence of HIV virus antibody itself but rather is
based on the high statistical correlation between infection with
the HIV virus and the presence of other physical manifestations
for which there are tests. The theory is that laboratory
verification of these other manifestations is a reliable indi
cator of AIDS infection. According to the CDC data assembled in
December 1982, the various surrogate tests would correctly
identify between 66% and 88% of AIDS-infected donors, the degree
of correlation depending on the risk category to which they
belonged.  The tests, however, had about a 5% false positive
rate, which would result in rejection of "safe" blood and hence
in a diminution of the nation's blood supply.  Moreover, the cost
of the tests would add to the price of collection and
distribution of blood products.

The report summarizing the January 1983 meeting observed that the
various participants had "differing perceptions" regarding not
only the risk of AIDS from blood donation but also "the best
approach for establishing altered guidelines for blood donation
donor screening or testing and donor restriction."  But as
information continued to be collected, the CDC became
increasingly concerned about AIDS contamination of the blood
supply.  In March  1983, a recommendation was issued designed to
keep members of high risk groups from donating blood, urging
donor Screening procedures which would include "specific
laboratory tests as well as careful histories and physical
examinations," and advising use of autologous transfusions where
indicated.  By January 12,1984, according to one of plaintiff's
experts who cited the issue of the New England Journal of
Medicine of that date, "the national medical community officially
recognized that which was generally known for well over a year,"
namely, that "AIDS was transmissible through blood and blood
products."  The virus was isolated several months later, testing
began in March 1985, and it is apparently now believed in the
scientific community that as a result of later test refinement,
blood can now be made virtually 100% safe from AIDS
contamination.

The controversy centers on the period from early 1983 to the
inception of specific HIV antibody testing in March 1985.
According to the record, the nation's commercial blood bankers
had initiated surrogate testing and aggressive donor screening of
high-risk groups starting in late 1982 when the hepatitis core
antibody test was initially licensed by the FDA. The medical
director of the Stanford University Blood Bank started surrogate
test screening there in July 1983, and by June 1,1984 such
testing was routinely done by other non-profit blood banks
throughout northern California.  The American Red Cross and the
AABB however, apparently because of their concern over
maintaining the adequacy of the blood supply and containing the
cost of its collection, continued to take the publicly expressed
view, despite privately expressed reservations by some of its
officials, that the risk of AIDS infection from blood transfusion
was minimal (less than one in a million), that routine surrogate
testing of blood was not advisable, and that aggressive
interviewing to determine a donor's membership in a high-risk
group was inappropriate.  Instead, the AABB recommended -
educational campaigns for self screening by high-risk donors,
donor inter-viewing to elicit physical symptoms associated with
AIDS, non-targeting of high-risk groups for donor recruitment,
and use of autologous transfusion when appropriate. Consequently,
most of AABB's members, including BCBC, did not perform any
laboratory testing until the spring of 1985 and did not
aggressively seek to exclude male homosexuals or members of other
high-risk categories. [footnote 1]

We address the strict liability claims against this factual
background. The critical point which emerges from the foregoing
recitation is that however safe from AIDS contamination donated
blood may now be, the best that can be said for the blood supply
in August 1984 is that the risk of contamination, while then
subject to significant reduction, nevertheless remained
appreciable. That is to say, if a blood bank had then employed
all the laboratory testing and donor screening techniques
available to it, it would nevertheless have missed,
statistically, at least 12%, and perhaps as much as 33%, of all
AIDS-infected blood.  We are satisfied that aside from any other
consideration, this margin of error rendered the blood supply
unavoidably unsafe, precluding the application of strict
liability principles to all of those in the chain of collection
and distribution.

In Brody v. Overlook Hospital, 127 NJ Super. 331, 317 A.2d 392
(App.Div.1974), affd, 66 NJ. 448, 332 A.2d 596 (1975), we
reviewed the policy considerations which impelled our conclusion
that strict liability cannot be imposed on a non-profit blood
bank and its non-profit distributees in the case of hepatitis -
contaminated blood.  To be sure, at the time of the blood transfu
sion in Brody, there was apparently no available test at all for
the serum hepatitis virus with which that plaintiff was infected.
It was thus manifest that we were dealing with an unavoidably
unsafe product having a high degree of public utility and social
benefit which was therefore exempt from strict liability
doctrines.  See generally Shackil v. Lederle Laboratories, 116 NJ
155, 561 A.2d 511(1989); Restatement (Second) Torts  402A comment
k, (1965).  And see NJSA. 2A:58C-3(a)(3); see also Senate
Judiciary Committee Statement accompanying L. 1987, c. 197, codi
fied as N.J.S.A. 2A:58C-1 to -7.

We appreciate the difference between having no test at all and
having a test with a significant, if not perfect, degree of relia
bility.  But even an 88% reliability factor is, in our view,
insufficient to overcome the other policy reasons on which we
relied in Brody in rejecting strict liability.  In sum,
considering the public health implications of blood collection
and distribution and the non-profit status of that segment of the
industry involved in Brody, we were there convinced that it would
be inimical to the public interest to call upon the non-profit
blood bank and those in its distributive chain to warrant a blood
product whose safety was beyond their power to ensure. In 1984,
no matter how diligent and aggressive BCBC might have been in
donor screening and laboratory testing, it would nevertheless
necessarily have supplied some AIDS-contaminated blood. The
unfortunate recipient of that blood would be in no different
legal or equitable position than the plaintiff in Brody, nor
would the blood bank.  In short, product protection for the
patient and legal protection for the blood bank remains the same
- that is, that the blood bank is obliged to do everything it
reasonably can do to ensure safety, but it cannot be responsible
for what is not within its capacity to control. This rationale of
Brody was forcefully reiterated by the Supreme Court in Feldman
v. Lederle Laboratories, 97 NJ: 429, 442, 479 A.2d 374 (1984),
the Court there holding that:

When the essential nature of the transaction involves a service
rather than a product, public policy may dictate, in view of the
status of the provider, that the general welfare is served better
by inapplicability of the strict liability doctrine. Further,
when the provider is a nonprofit institution that supplies a prod
uct and that product is vital to the public health, the doctrine
may similarly be inapplicable.  The common thread that runs
through these cases is that in each of those situations there is
a strong public policy rooted in the general welfare that
justifies imposing responsibility only on the basis of a want of
due care (negligence) rather than on the basis of a defective
product (strict liability).

We need not consider the question of whether strict liability
principles could apply, at least to the blood bank, upon a
showing, as we now understand could be made, that with proper
testing techniques, blood can be made completely safe from AIDS
contamination.  We note only that New Jersey does not have any
statutory inhibition to such a result [footnote 2] and that it
might be cogently argued that the blood-banking industry's
scientific capacity to warrant the freedom of blood from AIDS
Contamination should result in its legal obligation to so
warrant.

[2]  Little need be said respecting the inapplicability of strict
liability to defendants St. Joseph's, AABB, and the physicians.
The physicians are clearly exempt under the holding and rationale
of Newmark v. Gimbel's, Inc., 54 N.J 585, 258 A2d 697 (1969).
AABB is not itself a supplier or tester of blood.  It itself does
not deal in producing or distributing a product whether or not
the blood bank itself does.  As to St. Joseph's, we concur with
the holding of Johnson v. Mountainside Hosp., 239 NJ. Super. 312,
571 A.2d -318 (App.Div.1990), that for purposes of product
liability law, a hospital cannot be held strictly liable for a
latently defective product supplied to it by another for its use
in rendering treatment.

[3, 4]  What we have said respecting strict liability does not,
of course, affect plaintiffs' remaining negligence causes of
action against the remaining defendants. There is certainly
enough in this record to raise a factual question as to the
reasonableness of AABB's conduct in opting to  forego guidelines
which would have required its members to perform surrogate
laboratory testing or more vigorous donor screening. There is
also a factual question as to BCBC's conduct in collecting blood
without these techniques, irrespective of AABB's guidelines.
[footnote 3] If it were determined that the conduct of either
BCBC or AABB, or both, unreasonably created an appreciable
enhancement of plaintiff's risk and that the enhanced risk was a
substantial factor in producing his injury, they would be liable
to him in negligence even though he might have contracted AIDS
even if they had taken every available precaution. See Evers v.
Dollinger, 95 N.J 399, 417, 471 A.2d 405 (1984). See also Ayers
v. Jackson Tp., 106 N.J 557, 591-599, 525 A.2d 287 (1987).  In
addition, there is a more direct negligence claim against BCBC,
namely the allegation that but for its unreasonable conduct in
screening the donor of the contaminated blood, that infected unit
would have been initially rejected.

[5]  Finally we have no doubt that the viability of the
negligence cause of action against the physicians has been
adequately demonstrated. Aside from the issue of the unrepaired
bleeder, there is record support for the proposition that a jury
could find that in the case of elective surgery in August 1984,
the physician's duty to inform the patient included advice as  to
the possibility of AIDS contamination and the availability of
autologous and direct donor transfusion.

[6]  We now address the question of donor records.  To begin
with, we note that BCBC has already supplied plaintiffs with the
registration form of the donor of unit number 29F0784 with his
name and any other identifying information redacted. This form
consists of a series of questions relating to medical history,
previous blood donation and vital signs at the time of the
donation. BCBC asserts that this information is adequate for
plaintiff's purposes. It also asserts that any further
information either identifying the donor or in any other way
permitting plaintiff to penetrate the donor's anonymity or
privacy would breach BCBC's obligation of confidentiality imposed
both by considerations of public policy and by the dictates of
NJSA. 26:5~5 to -14 (confidentiality of records of AIDS
patients).

We consider first plaintiff's need for further information.  He
claims that he requires it for several reasons.  First, none of
the defendants is now willing to admit that unit number 29F0784
was contaminated. While there is no question that the donor of
that unit tested positive for HIV antibodies in 1986, defendants
apparently insist on putting plaintiff to his proof that the
donor had been infected as far back as August 1984.  It is
certainly inferential from the circumstances that he was then
infected, particularly in view of the medical assurance referred
to supra that plaintiff had no other risk factor.  But defendants
refusal to concede the point entitles plain-tiff to seek direct
proof that the donor was HIV-positive in 1984. [footnote 4]

Beyond that causation issue, plaintiff cogently asserts a need in
respect of the question of BCBC's negligence.  Illustratively, it
was known before August 1984 that early symptoms of AIDS -
infection include particular lymph-node swelling and skin
disorders, and, in fact, by 1983 the commercial blood bankers
were conducting routine physical examinations of donors to
determine the presence of these symptoms. Did the donor here have
those symptoms then? Was he asked about them? Was he physically
examined in this respect?  Was he given the appropriate high-risk
group self-screening information? Was a reasonable effort made to
determine if he was in a high-risk category?  Were his responses
to the medical history questions accurately recorded?  Were the
questions adequately explained to him?  Would present screening
requirements, short of laboratory testing, have revealed his AIDS
infection? [footnote 5] Undoubtedly other relevant lines of
interrogation would suggest themselves.  All of this information
is, in our view, highly pertinent to the issue of BCBC and AABB
negligence and is, moreover, to a large extent not available from
any source other than the donor himself.

The question then is how to balance plaintiff's need to gain
relevant information against the donor's right to privacy and the
public's need to maintain confidentiality, which is said to be a
cornerstone of the nation's blood donation program.  We start
with NJSA. 26:5C-5 to -14, which is intended to protect the
confidentiality of individual AIDS records while assuring their
limited availability for essential health, scientific and other
legitimate purposes. [footnote 6] The statute stipulates that
unless disclosure is expressly provided for by N.J.S.A. 26:5C-8,
it may be obtained only by court order for good cause shown.
N.J.S.A. 26:5C-9(a).  In assessing good cause, moreover,  the
court is required  to "weigh the public interest and need for
disclosure against the injury to the person who is the subject of
the record, to the physician-patient relationship, and to the
services offered by the program [of diagnosis and treatment of
AIDS and conditions related to HIV infection]."  Moreover, if
good cause is found, the court is required to determine the
extent to which disclosure is necessary and to impose appropriate
safeguards.

We are convinced that confidentiality of blood bank AIDS records
rests upon significant public and private considerations and is
ordinarily essential to assure the continued effectiveness of the
screening process, the willingness of donors to continue to
participate in blood collection efforts, and the general
integrity of the nation's blood programs. Nevertheless where, as
here, a litigant's discovery need cannot otherwise be met and it
is possible to accommodate that need with limited and controlled
intrusome access under careful court supervision is appropriate
and justifiable. See Belle Bonfils Mem. Blood Center v. District
Court, 763 P.2d 1003 (Sup.Ct.Colo. 1988); Tarrant County Hosp.
Dist. v. Hughes, 734 S.W.2d 675 (Ct.App.Tex.1987); Stenger v.
Lehigh Valley Hosp. Center, 386 Pa.Super. 574, 563 A.2d 531
(1989); Boutte v. Blood Systems, Inc., 127 F.R.D. (W.D.La.1989);
Mason v. Regional Medical Center of Hopkins County, 121 F.R.D..
300 (W.D.Ky.1988); But see contra South Florida Blood Service v.
Rasmussen; 467 So. 2d 798 (Fla.App.1985); Krygier v. Airweld,
Inc., 520 NYS2d 475, 137 Miax.2d 306 (Sup.Ct.1987); Doe v.
American Red Cross Blood Services, 125 F.R.D. 646 (D.S.C. 1989)

Plaintiff has not yet been able to determine if the donor is
still alive. That is the first order of business for BCBC's
disclosure.  If he is not alive, the trial judge shall explore
with counsel the possibility of  obtaining information respecting
the stage of his disease in 1984, his membership in a high risk
category, and any other relevant information from other sources.
The donor's personal representative will, moreover, have to be
noticed of these proceedings.  If the donor is alive,  the court
shall determine procedures best calculated to provide plaintiff
with the information he requires while giving maximum protection
to the donor.  For example, the donor's name need not be supplied
if his "veiled" deposition is permitted.  If such a deposition
were to be permitted, the court could appropriately limit in
advance the areas of questioning and impose such other conditions
as would insure the donor's anonymity. If, on the other hand,
only a deposition on written questions pursuant to R. 4:15 were
permitted, the court could rule on the list of questions prior to
their submission and permit an alias identification and oath.  It
may also be that the donor would have no objection to providing,
openly and frankly, the information plaintiff requires or he may
authorize his physician to do so. Thus it may also be prudent for
the court itself initially to communicate with the donor. In
addition, it is likely that the parties themselves will be able
to suggest to the court further limitations on the substance of
the inquiry and the technique by which it is to be pursued that
will afford plaintiff a reasonable discovery opportunity at the
least possible cost to the confidentiality interests here
implicated.

The ultimate point of course is that plaintiff has suffered a
most grievous harm which was apparently inflicted upon him by
this donor, whether unwittingly or not. He does not seek redress
from the donor but rather from those defendants whose
responsibility it was to stand protectively between them. The
degree of plaintiff's injury, his right to redress from those who
may have negligently failed to protect him, and his need for
information which only the donor can provide if redress is to be
obtained, all justify the limited disclosure we here sanction
without unduly prejudicing the interests of the public and the
donor's privacy rights.

The order appealed from is affirmed insofar as it dismissed all
strict liability claims.  It is reversed insofar as it denied all
discovery of donor information, and we remand for further
discovery proceedings consistent with this opinion and for trial
of the negligence causes of action.



FOOTNOTES:

1. factual recitation is culled from documents in the record
before us. The same chronology but without reference to such
matters as surrogate testing and the response of the commercial
blood banks and the northern California non-profit blood banks'
activity is reviewed in Kozup v. Georgetown University 663
F.Supp. 1048, 1051-1053, (D.D.C.1987), affirmed in part and
vacated in part 851 F.2d 437 (D.C. Cir.1988). For recent
discussion and analysis of the position of the American Red Cross
and AABB from January 1983 to March 1985 on such matters as
surrogate testing and aggressive donor interviewing. See
Feldschuh and Weber, Safe Blood (Free Press, 1990); Rock, Inside
the Billion-Dollar Business of Blood," Monty Magazine (March
1986). Note further that on July 13, 1990, the Subcommittee on
Oversight and Investigations of the U.S. House of Representatives
Committee on Energy and Commerce conducted public hearings on the
safety of the nation's blood supply. The opening statement of the
Chairman, Congressman John D. Dingell, noted that the inquiry has
its roots in the early to mid 1980's, when the blood industry and
the Government failed to prevent the transfusion of thousands of
units of blood and blood products infected with the AIDS virus.

2. Forty-eight states have statutory provisions exempting
suppliers of contaminated blood from liability on various
alternative bases. See Roberts v. Suburban Hospital, 73 Md.App.
1, 532 A2d 1081. 1086, n. 3 (1987).

3.   We point out that the northern California blood banks using
surrogate testing in 1983 and 1984 were AABB members.

4.   More direct proof may be available by way of discovery.
permitted by court order, of the medical records of other donees
of components of the 29F0784 donation.

5.   See N.J.A.C. 8:8-6.5, adopted February 1987, amended May
1989, prescribing detailed AIDS screening requirements. At the
time of the August 1984 donation, N.J.A.C. 8:8-5.2 provided only
that medical history and physical examinations be consistent with
the Code of Federal Regulations and AABB guidelines. See also 21
CFR.  640.3 (1990).



6.   The confidentiality requirement attaches to blood banks by
express provision of N.J.S.A. 26:5C-7f.