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

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/* This case is reported in 884 F.2d 196 (5th Cir. 1988). This
case finds that the federal government could be held liabile for
the tort of performing a medical procedure without fully informed
consent, for failure to warn of the risk of infection with HIV in
a 1984 transfusion. */

Jose R. VALDIVIEZ, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

Sept. 22, 1989.

As Amended on Denial of Rehearing

Oct. 19,1989.

DUHE, Circuit Judge:

The issue in this case is whether the United States is liable
under the Federal Tort Claims Act, 28 U.S.C.  1346 et seq. for
the consequences that flowed from a homosexual serviceman's act
of donating blood contaminated with the virus that causes
Acquired Immunodeficiency Syndrome (AIDS). The district court
held that it was not.

FACTS

Before donating blood during a military sponsored blood drive, a
serviceman signified that he had read literature provided by the
blood bank concerning AIDS and understood that members of high
risk groups were asked to refrain from donating blood. The
serviceman was aware that, as a practicing homosexual, he was in
a high risk group for AIDS but gave blood anyway because he did
not want anybody to think he was "gay."

On October 22, 1984 at a military hospital, the serviceman's
donated blood was transfused into retired serviceman Jose R.
Valdiviez, during coronary artery bypass surgery.  Before the
surgery, Valdiviez was warned of the risk of contracting
hepatitis and syphilis from a blood transfusion but was not
warned of the risk of AIDS.

Valdiviez sued the United States alleging it was negligent for
failing to (1) properly screen for high risk blood donors; (2)
timely and adequately test the blood he was given for AIDS; and
(3) advise Valdiviez the blood which he would be receiving during
surgery had not been tested for AIDS and of the risk of that
disease. In a motion for summary judgment, Valdiviez asserted a
fourth claim-that the United States was vicariously liable for
the actions of the blood donor.  The United States filed a cross-
motion for summary judgment which was granted by the trial court.

Trial court opinion

The trial court found that the medical community did not reach a
consensus regarding whether AIDS could be transmitted by blood
until 1984 and that no test was able to detect AIDS contaminated
blood until May 1985.  The trial court held that a reasonable
jury could not find that the possibility of contracting AIDS from
a blood transfusion was a material risk at the time Valdiviez
received his blood transfusion nor could a reasonable jury find
that if Valdiviez had been informed of the "minuscule
possibility" of contracting AIDS, he would have refused the heart
surgery and the necessary transfusion.

On the vicarious liability issue, the trial court found that the
donor's failure to in-form blood center personnel that he was a
practicing homosexual was intentional and therefore the United
States was not liable. The court further found that even if the
donor's act was negligent rather than intentional, donating blood
was not in the course and scope of his employment.  It noted that
the donor was not required to give blood and was not paid or
given any benefit to donate blood.  The trial court concluded
that donating blood was a voluntary humanitarian act, not in
furtherance of the serviceman's military duties, nor an objective
for which military personnel are employed and therefore the
United States was not vicariously liable for the donor's act.



FTCA

The Federal Tort Claims Act (FTCA) 28 U.S.C.  1346 et seq.,
recognizes the general principle that the United States should be
liable for the negligence of government employees performing
governmental functions when a private person would be liable
under the same circumstances.  The purpose of the Act was to make
a remedy available  when  previously  it had  been barred  by
sovereign  immunity.   14  C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure,   3658 (1985). The main statutory
provision,  1346(b) of Title 28, gives the district courts
jurisdiction over actions against the United States for money
damages:

...  for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his
office or employment, under circumstances where the United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred.

Section 2671  of the FTCA provides that, in the case of a member
of the military, "acting within the scope of his office or
employment"  means acting "in line of duty."

Vicarious liability

[1]  On appeal Valdiviez contends that the district court erred
in holding that Jackson was not in the course and scope of his
employment when he donated blood.  Valdiviez argues that the
extent of control an employer exercises over a worker is a pri
mary factor in determining whether the worker is a "servant"
under the doctrine of respondeat superior, and, that the district
court ignored the issue of the United State's control over the
donor and the blood donation process.  He notes that the blood
bank was located at a military facility; that the blood donor's
commander authorized the donor to donate blood during the duty
day;  and implicitly encouraged donations by allowing notices of
the blood drive to be posted at the donor's duty station and by
allowing time off with pay if the donor fell ill following the
donations.  Valdiviez also notes that the United States
Government had direct access to the most current information
concerning the spread of the AIDS virus.   In summation,
Valdiviez argues that it was the Government's policies,
procedures and employees who "set the stage" for him to become
infected with the AIDS virus.

Valdiviez's main legal argument is that the phrase "in line of
duty" should be interpreted as analogous to conduct undertaken
"incident to service".  He further argues that since the conduct
in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed.
152 (1950) and Parker v. United States, 611 F.2d 1007 (5th
Cir.1980), was held "incident to service" then a fortiori this
court should hold that the serviceman 5 donation of blood was
incident to his service. This argument is without merit The Feres
doctrine applies to determine whether a serviceman who is injured
while acting incident to military service can maintain a suit
against the United States under the IT(1A. In this case the issue
is the Govern-merit's vicarious liability for a serviceman s
acts.  The Feres doctrine does not extend to this situation.  The
trial court correctly held that the donor was not acting within
the scope of his employment when he donated the contaminated
blood.  Accordingly, the United States is not liable to Valdiviez
on a vicarious liability theory.

Negligence

[2]  Valdiviez contends that the trial court erred in granting
summary judgment because a factual issue remains as to whether
the United States was negligent in the  manner  in  which  it
collected  and screened the blood used in his transfusion.
Valdiviez  argues  that  given  the  blood bank's  knowledge
that AIDS  could be transmitted by blood, its reliance on self
screening was negligent. This argument is without merit.
Although in hindsight, the shortcomings of the self-screening
approach are evident, our review of the record indicates that
this method was the procedure recommended by the Center for
Disease Control at the time the blood was donated.  Valdiviez has
not raised a fact issue as to whether the United States deviated
from the standard of care applicable. Accordingly, the trial
court correctly granted summary judgment in favor of the United
States on this issue.

Informed consent

[3]  Valdiviez next contends that the trial court erred in
holding that his physicians did not have a duty to warn him of
the risk of acquiring AIDS through blood transfusions.  He
contends that the effect that full disclosure would have had on
his decision is a factual issue that precludes summary judgment
and that the trial court's holding on duty overlooks this issue.
He notes that AIDS poses a more significant health threat than
hepatitis yet he was warned about the risk of hepatitis and was
not warned about the risk of AIDS. Valdiviez contends that the
risk of contracting AIDS was a material one due to the fact that
100% of all known AIDS cases die within two years of their first
manifestation of the AIDS complex.  He contends that just because
he was informed of the risk of hepatitis, a treatable illness,
and still consented to surgery does not mean that he would have
consented to surgery if informed of the risk of contracting AIDS
from the transfusion.  He also notes the possibility that had he
been fully informed, he could have chosen to have relatives
donate blood or donated blood for himself.

As noted above, the FTCA provides the United States shall be
liable in tort "in the same manner and to the same extent as a
private individual under like circumstances. In Texas, physicians
and health care providers are only liable for negligent failure
to disclose the risk involved in the medical care of the risk or
hazard could have influenced a reasonable person in making a
decision to give or withhold consent.  Tex. Rev.Civ.Stat.Ann.
art. 4590i  6.02 (Vernon Supp.1988).

One of Valdiviez's treating physicians, Dr. Brent Grishkin,
testified that the risk of receiving AIDS through a blood transfu
sion was so remote during the time of Valdiviez's operation and
hospitalization as to make the awareness of such risk unwar
ranted.  He further testified that the risk of receiving AIDS
through blood transfusions has never been significant enough to
warrant advising patients of the risk.

To warrant denial of the defendant's motion for summary judgment
on this issue there must be present an issue of fact either as to
whether the risk is inherent to the medical procedure or whether
the risk is material enough to influence a reasonable persons
consent to the procedure.

Barclay v. Campbell, 704 S.W.2d 8, 910 (Tex. 1986).

Valdiviez has submitted no direct evidence to contradict the
opinion expressed by Dr. Grishkin.  The record does contain
information regarding the inevitably fatal nature of AIDS. This
fact is not disputed. What is disputed is the conclusion
Valdiviez would have drawn from this fact if he had been made
aware of it.  While the incidence of AIDS contaminated blood was,
and is, extremely low, the severity of the harm posed by the
disease is greater.  We hold that a reasonable fact finder could
find that if fully informed a reasonable person could have
refused to accept a blood transfusion from the anonymous donor
and may even have refused to undergo surgery. This is an issue of
fact for jury resolution.

Accordingly, the trial court erred in granting summary judgment
in favor of defendant on this issue.  The decision of the trial
court is affirmed in part and reversed in part.  The case is
remanded for trial on the issue of informed consent.

REVERSED and REMANDED.