AIDS LITIGATION PROJECT I: Case Summaries

AIDS LITIGATION PROJECT I: Case Summaries

Department of Health and Human Services; Public Health Service, Office of the Assistant Secretary for Health Office of PHS HIV/AIDS Coordination::Director: James R. Allen, M.D., M.P.H., Project Officer: Iris Gelberg. This project was developed and prepared under PHS Contracts #89-AF-477762OID and #89-AF-477763OID - Washington, DC, 1990
Prepared by: Larry Gostin, Lane Porter, and Hazel Sandomire

I. AIDS EDUCATION

[1] Gay Men's Health Crisis, et al. v. Bowen, Sec'y H.H.S., S.D. N.Y., AIDS Litigation Reporter 10/28/88 (Announcement of filing of Complaint).: FACTS: Several service organizations filed suit against the federal DHHS regarding language in legislation authorizing funding for AIDS education. The groups contend that the statutory prohibition against funds being used "to provide AIDS education, information, or prevention materials and activities that promote or encourage, directly, homosexual activities"--and requires that the material be presented in a manner "judged by a reasonable person to be inoffensive to most educated adults beyond that group"--violates the groups' First and Fifth Amendment rights and inhibits their ability to produce federally funded AIDS prevention or education materials which are medically accurate and effective.

[2] Ware, et al. and on behalf of Plymouth Brethren No. 4 et al. v. Valley Street High School District, et. al., Superior Ct., Nassau Co., New York. AIDS Litigation Reporter 3/10/89 and 3/24/89. (Announcement of Complaint).: FACTS: Plaintiffs were members of a strict religious group who reside in and around Valley Stream and who have approximately 35 children attending Valley Stream High School district. The tenets of the group's religion require that it keep itself separate from the larger society and its influences as far as possible. Also, the religious tenets of the members flatly proscribe sexual relations outside of marriage, require abstinence, and forbid exposure to instruction concerning sexual relations and moral teachings other than those imparted by members of the community to members of the community.; They seek to exempt their children from the required AIDS education program. They believe that the AIDS education program offends their conscience and religious beliefs because it details and recommends immoral practices as if they were acceptable, and otherwise exposes the children to influences which petitioners consider inimical to their religious, moral, ethical, and personal well-being.; Plaintiffs filed a petition demanding that the children be exempt from attending the AIDS education program required under state education regulations. They maintained that the program violated their first amendment right to free exercise of religion, and to privacy and freedom to supervise and to rear their children.; Plaintiffs attempted to have the school district exempt the children from attendance. The district determined that it could not do so because it was bound by state educational regulations. The plaintiffs' children withdrew from the classes and were subject as a result to the school's disciplinary sanction.; Plaintiffs maintained that their absence from the program posed no public health threat to the members of the larger society as the members of the group's community involve themselves consistently and continuously in instilling exemplary ethical and moral behavior in all members of the community and their children, including the teaching of abstinence from sexual relations outside of marriage.; Plaintiffs sought--(a) a declaration that forced attendance would violate the religion provisions of the first amendment and their implied fundamental right to privacy and freedom from governmental interference with their liberty to supervise and rear their children,--and (b) an injunction restraining the school district from compelling their children to participate in the AIDS instruction.; The Supreme Court, after a hearing, lifted the temporarily imposed injunction. The injunction was immediately reinstated by the Appellate Division.; Prior to the action being heard on the merits, Education Commissioner Thomas Sobol, on March 13, 1989, granted the children a temporary exemption.

[3] Bean v. Board of Supervisors, California Superior Ct., Los Angeles Co. SOURCE: ACLU (Complaint and supporting documents, 3/10/87).: FACTS: Plaintiffs include SCLC and NAACP, as well as one patient who denies having received any education about how to prevent getting the disease. They allege that no plan for AIDS education has been drafted by the county and that county expenditures for minority populations average less than three cents per minority resident. They believe that the Los Angeles County public education program about AIDS fails to address the growing AIDS epidemic within minority communities.; ISSUE: Whether Los Angeles County should be compelled (a) to stop expending public funds for programs which do not provide for public education about AIDS within minority communities and (b) to develop a plan for appropriate education within 30 days.

II. PROTECTION OF THE BLOOD SUPPLY

A. Standards of Strict Liability and Negligence for Blood Transfusions

[4] Coffee v. Cutter Biological, 809 F.2d 191 (2d Cir. 1987).: FACTS: Plaintiff is a hemophiliac who contracted AIDS after receiving Koate, a blood product manufactured by defendants. Plaintiff alleges that the blood used in manufacturing Koate contained HIV and caused him to contract AIDS. Plaintiff sued on the ground that the Koate was in a defective and dangerous condition when administered and, under a theory of breach of warranty or strict liability, the defendants should be held liable for plaintiff's injuries.; The blood manufacturer contends that Connecticut's blood shield statute (Conn. Gen. Stat. sec. 19a-280) bars such claims. Plaintiffs contend that the blood shield statute was not intended to protect commercial producers of blood products and that Koate is not a component or derivative of blood as required by the blood shield statute.; ISSUE: Whether the Connecticut blood shield statute protects commercial blood product producers and whether clotting products are covered by the statute?; HOLDING: The blood shield statute was intended to preclude the assertion of product liability claims arising out of the sale of blood components. It therefore protects commercial blood product manufacturers.; REASONING: The plain language of the statute states that supplying blood or blood derivatives shall be considered a medical service.; Blood product manufacturers are therefore beyond the purview of general products liability statutes and the claims derived therefrom. A commercial manufacturer is equally protected. Although the blood shield statute fails to define the term "blood bank", such term is defined in an analogous statute, the anatomical donations statute. (Conn. Gen. Stat. sec. 19a-272(e). There, the term is defined as a "facility for storage of human bodies or parts thereof." "Parts" is further defined to include blood. Under that statute, transfers from blood banks are protected from products liability claims. The public policy which supports the immunization of anatomical parts distributors argues that immunization is necessary to protect the continuous supply of such items. The court determined that the policy behind the anatomical parts law was similar to the blood shield law and adopted its definition of blood bank which did not distinguish between commercial ventures and not-for-profit organizations. Thus, blood banks are facilities for storage of human bodies or parts thereof - whether commercial or non-profit - and covered by the blood shield law. The claims for damages under both a theory of strict liability and breach of warranty were dismissed.

[5] Jones v. Miles Laboratories, 700 F. Supp. 1127 (N.D. Ga. 1988).: FACTS: Plaintiff, a hemophiliac with AIDS, claims that defendant, a manufacturer of Koate, a blood clotting product, was negligent in the manner in which it collected plasma, that it failed to eliminate HIV infected plasma, and was responsible for his contracting AIDS.; Some of the plasma which was used to create the Koate used by plaintiff was donated by Whitfield who died of AIDS in October 1983. Whitfield had not told his physician or the blood collection center that he was homosexual. He told his physician that he was gay just before he died of AIDS. The newspapers reported his death and also that he was the first person to die of AIDS in Austin. The head of the blood center saw the article and determined that he had donated blood on many occasions in 1982 and 1983. The plasma center traced Whitfield's donations and notified the blood products' manufacturers to whom they had been sent. These manufacturers in turn notified hospitals and doctors who had purchased tainted Koate. Hospital records indicated that plaintiff had received tainted Koate in September 1983 before Whitfield's death and announcement to his physician that he was gay in October 1983.; In 1982 and 1983, it was routine practice in the plasma industry in Texas to ask a donor if he was homosexual. When this practice began was not made clear at the trial. In January and February 1983, the blood bank asked Whitfield if he was gay. He denied being gay. In March 1983, the FDA issued regulations recommending that plasma centers take certain measures to screen out donors in high risk groups; this would include asking if the donor was homosexual.; ISSUE: Whether the blood manufacturer was negligent in the manner it screened donors such that it should be held liable for injury to the plaintiff?; HOLDING: No, the blood manufacturer was not negligent in the manner in which it collected blood.; REASONING: In order to be held liable for negligence it must be shown that the defendant failed to conform to the standard of the industry evidenced by ordinary reasonable care as practiced by a reasonably prudent manufacturer. Before the development of blood screening tests, the standard practice, as exercised by the ordinary reasonably prudent plasma center, did not include either screening or testing of blood for signs of AIDS. Therefore, the defendant cannot be held liable.

[6] Jones v. Miles Laboratories, Inc., 705 F. Supp. 561 (N.D. Ga. 1987).: FACTS: Same case as above, but here the plaintiffs were pursuing claims in strict liability and in negligence. The defendant brought a motion for partial summary judgment regarding the strict liability claim. This motion would eliminate the strict liability claim from the litigation.; Defendant contends that the Georgia blood shield statute immunizes it from products liability claims which do not require the plaintiff to prove negligence or fault even though defendant is a for-profit enterprise.; ISSUE: Does the Georgia blood shield statute protect defendant, a commercial blood product manufacturer, from liability without a showing of negligence?; HOLDING: The Georgia blood shield statute protects the defendant from liability without a showing of fault.; REASONING: The Georgia blood shield statute protects those who transfuse, procure, etc. blood from liability without a showing of fault. This is founded on the public policy of guaranteeing the availability of blood. The statute makes no distinction between for-profit and not-for-profit enterprises. Public policy does not support such a distinction either. Therefore, the court granted the motion for partial summary judgment and dismissed the claim for damages under a theory of strict liability.

[7] Doe v. Travenol Laboratories, Inc., 698 F. Supp. 780 (D. Minn. 1988).: FACTS: Plaintiff, a hemophiliac, had AIDS Related Complex. He claimed he contracted HIV from an antihemophilic factor and sued defendant blood manufacturer for breach of warranty, strict liability and negligence.; ISSUE: Whether, under Minnesota law, the recipient of a tainted blood product may recover from the blood supplier for injury on the ground that the sale of the blood brought the transaction under the commercial code and therefore permitted action in strict liability and breach of warranty?; HOLDING: No, the sale of blood is not a commercial transaction.; REASONING: Both statutory law and common law, for public policy reasons, protect suppliers of blood and blood products from claims of strict liability and breach of warranty. To do otherwise would require them to protect against defects for which they could not test. Legislatures feared that the threat of products liability suits, which do not require a finding of fault, would drive the suppliers out of business. It has therefore been held that the purchase of blood is not a sale but a service. Therefore no strict liability claim will lie. In addition, because breach of warranty claims must be based on the sale of goods and the supplying of blood is not a sale but a service, no claim for breach of warranty will lie either. In addition, Minnesota's blood shield law, Minn. Stat. sec. 525.921, specifically requires that the use of any part of a body for the purpose of transplantation in the human body shall not be construed as a sale of such part for any purpose.; This decision dismissed only those claims of strict liability and breach of warranty. It did not dismiss the negligence claims.

[8] Kirkendall v. Harbor Insurance Company, 698 F. Supp. 769 (W.D. Ark. 1988).: FACTS: Plaintiff suffers from AIDS which he claims he contracted from blood containing HIV received by transfusion during surgery on March 28, 1985. The defendant insurance company is the liability insurance carrier for Blood Systems Inc. ("BSI"), a non-profit corporation engaged in the business of supplying blood to various medical entities and hospitals.; BSI did not screen the blood used in the transfusion for HIV. The ELISA test was licensed on March 2, 1985. The blood center ordered 400 testing kits which it received on March 12, 1985. Training representatives from Abbott Laboratories, which manufactured the test, trained the blood center employees on March 18-19, 1985. Routine blood testing began March 23, 1985. The infected unit of blood which was given to plaintiff was donated on March 6, 1985. After the training period, blood bank employees tested new blood and not blood in the inventory. This was the practice of the industry.; At the time of the donation, the donor was asked questions regarding his health and given the information regarding high risk groups and self-exclusion as recommended by the FDA and the blood banking community. The policy of the industry at the time was to seek cooperation rather than confrontation for fear of a decline in blood donors. In addition, it was believed that members of risk groups would deny membership if asked directly.; No surrogate HIV tests were done on the blood. Plaintiff provided no evidence to show that had such tests been performed the HIV infected blood would have tested positive for other viruses and thus been discarded.; The plaintiff alleges that the blood was a "product" supplied in a "defective condition" which rendered it "unreasonably dangerous" and therefore BSI should be held strictly liable for the consequential injuries--without the plaintiff having to show that BSI was negligent.; Plaintiff also argues that BSI was negligent in screening its donors and failing to test the blood for the presence of the HIV antibody.; Plaintiff maintains that the defendant was negligent because it should have asked donors direct questions regarding membership in a high risk group rather than simply requesting voluntary exclusion.; Plaintiff maintains that defendant was negligent also because it did not perform surrogate tests on the blood.; Plaintiff also argues that defendant was negligent because it chose to test new blood after it received (and had been trained to use) the ELISA test. Plaintiff maintains that defendants should have tested blood in their inventory.; ISSUE: Whether any of the acts which plaintiff contends were negligent violated the standard practice of the blood industry at the time of the transfusion.; HOLDING: None of the acts were negligent.; REASONING: No evidence was adduced to prove that had the questions been asked the donor would have responded candidly or that because of his answers he would have been excluded. Nor was there any proof that had the surrogate tests been performed the blood would have been found to have been infected with other viruses and therefore rejected. Therefore, the blood bank's failure to question donors or to surrogate test the blood cannot be found to be the proximate cause of the plaintiff's injury. In addition, given the "window" period in which blood infected with HIV will not show antibodies, it cannot be proven that antibodies would have been detectable in the blood collected on March 6, 1985. Regarding the defendant's failure to test its inventory, the evidence showed that this was the standard practice of the industry. The court determined that unless the entire industry could be found at fault, the defendant had met the standard of care practiced by the industry and therefore could not be held to have been negligent.

[9] Poole v. Alpha Therapeutic Corporation, 698 F. Supp. 1367 (N.D. Ill. 1988).: FACTS: Stephen Poole was a hemophiliac who became infected with HIV after using defendant manufacturer's Factor VII product from 1975 until 1987. The defendant did not heat treat the blood used in producing Factor VII nor did it warn the deceased of this risk of infection. His widow sues the defendant in, among other claims, strict liability and for her own emotional distress. The defendant moves to dismiss these claims.; ISSUE I: Whether the Illinois blood shield statute protects manufacturers of blood products from strict liability actions?; HOLDING: The statute protects manufacturers from strict liability actions.; REASONING: Under the Illinois blood shield statute, processors of blood products are immune from suit under claims of strict liability. Therefore, plaintiff's claim for damages under this theory must be dismissed. Her claim for damages for negligent infliction of emotional distress must be dismissed also.; ISSUE II: Whether a claim for compensation for negligent infliction of emotional distress requires a showing of physical injury or illness resulting from the emotional distress?; HOLDING: The plaintiff must allege physical injury or illness in order to recover for emotional distress.; REASONING: Illinois law requires that the plaintiff allege physical injury or illness. Here, plaintiff failed to make such an allegation. Hence, her claim for damages under this theory must be dismissed also.

[10] Doe v. Miles Laboratories, Inc. and Cutter Laboratories Division, 675 F. Supp. 1466 (Md. 1987).: FACTS: In 1983, plaintiff was given "konyne" a blood coagulant factor, manufactured by defendants, which was infected with HIV. Plaintiff sued alleging strict liability, breach of warranty and negligence and strict liability - failure to warn. Defendant sought summary judgment regarding the claims of breach of warranty, strict liability and strict liability - failure to warn.; ISSUE: Whether a manufacturer of a blood coagulant in Maryland can be held liable for HIV infection from a blood product made from blood donated in 1983?; HOLDING: The Maryland blood shield statute (in effect in 1983) permitted suit in strict liability and breach of warranty against a manufacturer of blood products.; REASONING: The blood shield statute in effect in 1983 shielded manufacturers from suits only for serum hepatitis infection. It did not exempt them from suits for HIV until it was amended in 1986. Nor did Maryland's statute which immunizes those who administer medications protect manufacturers as they are not ones who administer treatments. Nor did the common law exempt the manufacturers from strict liability suits as such protection was available only to those who provide a service. Nor did public policy support exemptions. The court determined that the "best view is to consider blood containing undetectable diseases to be a defective product and therefore that strict liability is applicable."; However, the court found that the defendant could not be found to have had a duty to warn. In order to find such a duty, it must be found that in the exercises of ordinary care, the defendant knew or should have known of the risk or hazard. In 1983, there was no test which defendant could have used to detect the virus. Therefore in the exercise of ordinary care, it could not have known of the risk. Hence, no duty to warn existed.; The plaintiff's husband sued for loss of consortium. The court found that neither this claim nor that for punitive damages were compatible with claims under strict liability because such damages evaluate the conduct of the defendant, while strict liability looks to the product. The court, therefore, granted summary judgment and dismissed those demands for damages--for loss of consortium and punitive damages relating to the strict liability claims.

[11] Kozup v. Georgetown University, 663 F. Supp. 1048 (D.D.C. 1987).: FACTS: The plaintiffs, parents of an infant who contracted AIDS as a result of a blood transfusion given at birth in 1983, sued the hospital which administered the blood transfusion and the blood bank which collected the blood donation. The blood had been donated in October 1982 by an individual who subsequently developed AIDS and died of opportunistic infections. At the time of his donation, the donor was asymptomatic for AIDS.; The plaintiffs sued defendants under a variety of legal theories arising out of the procedures defendants used to collect and screen the plasma. They argued: that defendants were negligent; that they breached an implied warranty of merchantability of the product they sold; that they were strictly liable (liable regardless of their care); that they failed to obtain the informed consent of the parents; and violated the District of Columbia Consumer Protection Act. Much of plaintiffs' arguments turn on allegations that the defendants knew or should have known certain facts about AIDS at the time of the transfusions.; ISSUE I: Whether, at the time of the transfusion, the defendants knew or should have known that contracting AIDS from blood was a material risk of transfusion and that defendants' failure to so inform the plaintiffs was a failure to warn creating negligence?; HOLDING: The defendants did not fail to properly inform the parents.; REASONING: In order for defendants to be found negligent under a failure to inform theory, they must have failed to inform the parents of a material risk. A risk is material when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster or risks in deciding whether or not to forego the proposed therapy. The physician's liability for nondisclosure is to be determined by foresight, not hindsight; that is, it is to be judged by the knowledge available at the time. In January 1983, there was still no consensus in the medical or blood banking communities that AIDS was transmitted by a blood-borne agent. The belief was that there was only a one in 3.5 million chance of contracting AIDS from a transfusion. The court did not consider this a material risk. Because the risk was not material, the physicians could not be liable for non-disclosure of the one in 3.5 million risk.; Plaintiffs must also show that the hospital's failure to warn caused them to unknowingly undertake the risk; that if they had been informed they would have decided against the treatment. The court held that no reasonable jury would find that had the plaintiffs been informed of the one in 3.5 million chance of contracting AIDS they would have refused to let the hospital transfuse their son. The transfusions were absolutely necessary to save his life.; ISSUE II: Whether the blood bank (the American Red Cross) is liable for failing to provide the hospital with information regarding the one in 3.5 million risk of contracting AIDS.; HOLDING: No, the blood bank is not liable for non-disclosure.; REASONING: The same facts and reasons that immunize the physicians from liability for failure to inform also protect the blood bank.; ISSUE III: Whether the hospital was negligent in not offering the parents the option of directed donations.; HOLDING: No, the hospital was not liable for failing to apprise the parents of directed donations.; REASONING: In order to be held liable for negligence, the plaintiffs must show that the hospital violated a standard of care. For a hospital that standard is established by looking at the conduct of the medical profession. Proof that in hindsight, hospitals should have been offering such options, does not prove that the hospitals violated the then current standard of care. Because of the limited knowledge extant at the time, no hospital either in Washington, D.C. or the U.S., was offering such an alternative. Therefore, the hospital did not violate the standard of care.; ISSUE IV: Whether the blood bank, the American Blood Red Cross, violated its own standards of care extant at the time?; HOLDING: The blood bank did not violate its own standards of care.; REASONING: Again, because it was not known at the time of the transfusion that AIDS had an asymptomatic carrier state, no screening programs had been developed.; ISSUE V: Whether the hospital may be held strictly liable or liable for breach of implied warranty of merchantability?; HOLDING: The hospital will not be held to a theory of strict liability or to implied warranty of merchantability.; REASONING: Public policy argues against holding the hospital liable under either a strict liability theory or an implied warranty. To do otherwise would make the hospital an insurer; that is, that no matter how careful it was, if the patient were harmed as a result of impure blood, the hospital would be liable for its provision of blood to patients. The public need for hospitals argues against imposition of such broad liability.; ISSUE VI: Whether the immunity granted to hospitals should be extended to blood banks?; HOLDING: The blood bank will not be held to a theory of strict liability or to implied warranty of merchantability.; REASONING: The public policy that protects hospitals from claims for strict liability - the scientific inability to screen all carriers of infection despite due care - coupled with the public interest in assuring the ready availability of blood, must be extended to blood banks even though they are commercial ventures. The concern for the Nation's blood supply compels such an outcome as does the inability to screen out the infection.; ISSUE VII: Whether the hospital and blood bank may be held liable under the Washington, D.C. Consumer Protection Act?; HOLDING: The hospital and blood bank are not liable under the Washington, D.C. Consumer Protection Act.; REASONING: In order to come under the Act, the defendants must manufacture a product and their activities must constitute trade practices. The court held that it is "unnatural" to force a blood transfusion into the ordinary commercial sales mold. Nor can the sale of blood by a not-for-profit blood bank be considered a commercial transaction. The American Red Cross did not become a merchant because it accepted money in exchange for the blood.

[12] Shelby v. St. Luke's Episcopal Hospital and Shelby v. Gulf Coast Regional Blood Center, 1988 WL 28996 U.S.D.C., S.D. Tex. 1988.: FACTS: Plaintiff, the husband of Marie Shelby who died of AIDS, sued the hospital--in which she was transfused on July 18, 1984--and the blood bank which collected the blood which was used. He alleged that the blood used was infected with HIV. He argued that the blood bank was negligent in failing to warn Marie Shelby that the blood might be infected with HIV, failed to adequately screen donors of blood, and failed to warn donors, likely to be carrying HIV, of the risk posed to recipients by donations. Plaintiff also sued the blood bank for breach of express and implied warranties of fitness and merchantability of the blood.; Defendants argued that all of the blood transfused to Ms. Shelby was screened according to FDA and AABB industry standards in effect at that time.; ISSUE: Whether a blood bank can be held liable under a theory of breach of warranty, or, negligence for a recipient's contracting AIDS when it follows the standard practices of the industry in effect at that time?; HOLDING: No, the blood bank cannot be held liable under either theory.; REASONING: The Texas blood shield statute (Tex. Civil Practice and Remedies Code, sec. 77.0033) protects from all claims blood banks that do not pay cash for blood--except for negligence, gross negligence and intentional torts. In addition, the Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code) does not create a right of action for breach of warranty, or strict liability, when the activity involved is the transfer of blood by a blood bank that does not pay cash for blood. Body parts and blood have been held not to be commodities subject to sale or barter that would give rise to warranty claims. The blood shield statute, therefore, completely protects the blood bank from liability except for negligent acts.; Negligence exists only if the defendant has deviated from the applicable standard of care in the industry or profession and such deviation is the proximate cause of plaintiff's injury. There was no proof here that defendant did not follow the standard screening and collection practices in effect in 1984. Therefore, the claim for negligence will not lie.

[13] McKee v. Cutter Laboratories, 1989 WL 5558 (6th Cir. Ky.).: FACTS: Plaintiff's deceased husband was a hemophiliac who died of AIDS in 1983. Plaintiff sued the manufacturer of Koate, a blood product, on the ground that the manufacturer should be held strictly liable (liable without proof of negligence) for her husband's death on the ground that the blood from which it made the Koate used by her husband was tainted. She also argued, in the alternative, that the defendant was negligent in its production of Koate because it did not heat treat the blood products.; She argued that the Kentucky blood shield statute which protects the manufacturer of blood products from suits in strict liability is unconstitutional as it deprives her of a right of action that existed prior to the adoption of the Kentucky State Constitution. Defendant argued that the blood shield law is constitutional and it protects it from strict liability claims. In response to plaintiff's allegations of negligence, defendant argues that it produced Koate in accord with the known practices of the time.; ISSUE I: Whether the Kentucky blood shield statute constitutionally protects producers of clotting factors from strict liability claims?; HOLDING: The blood shield statute is constitutional and protects clotting factor manufacturers.; REASONING: A statutory denial of a cause of action will be constitutional only if the cause of action at issue did not exist under the common law prior to the adoption of the Kentucky Constitution. The court found that the statute was constitutional because actions in strict liability did not exist prior to the adoption of the Kentucky Constitution in 1891. Therefore, the blood shield statute did not preclude an extant cause of action.; The Kentucky blood shield statute (KRS sec.139.125) designates the procurement, processing or distribution of blood or blood products to be a service and not a sale for any purpose. Strict liability claims require that the transaction include the sale of a product in the marketplace. By denominating the procurement, processing and distribution of blood or blood products to be a service, the legislation protected manufacturers of clotting products from strict liability claims.; ISSUE II: Whether the defendant's failure to heat treat the blood was negligence?; HOLDING: The defendant's failure to heat treat the blood was not negligence.; REASONING: In order to show that the defendant was negligent, the plaintiff must show that the defendant failed to follow the accepted practices of the industry at the time. Plaintiff contends that because a German blood clotting product producer was using heat treatment in the 1970s and subsequently used it to destroy HIV, such a procedure was known and should have been used. The court found, however, that the heat treatment was not known in 1983 to destroy HIV and therefore the defendant could not be held liable for not using it.

[14] Samson v. Greenville Hospital System, 295 S.C. 359, 368 S.E. 2d 665 (1988).: FACTS: In January 1984, plaintiff received a blood transfusion at defendant's hospital. The blood used had been donated in December 1983. After the transfusion, the blood bank which supplied the blood determined that the blood transfused had been infected with HIV. Before she learned she was infected, plaintiff became pregnant and gave birth to a son. Both plaintiff and her son tested positive for HIV. They sued the hospital for damages on several theories, including breach of implied warranty of merchantability and fitness. They argued that the South Carolina blood shield statute was unconstitutional as it violated equal protection by treating victims of blood-product related torts differently from victims of non-blood product related torts.; ISSUE: Whether the South Carolina blood shield statute improperly distinguishes between blood-product related tort victims from non-blood product related tort victims?; HOLDING: The statute does not violate the equal protection clause.; REASONING: The equal protection clause will be satisfied if: 1) the classification bears a reasonable relation to the legislative purpose sought to be effected; 2) the members of the class are treated alike under similar circumstances and conditions; and 3) the classification rests on some reasonable basis. The legislative purpose sought to be met by the statute is to encourage a readily available supply of blood and blood products. The statute reflects a legislative judgment that to require providers to serve as insurers of the safety of these materials might impose such an overwhelming burden as to discourage the gathering and distribution of blood. To ensure that such services remain adequate and affordable, legislatures have chosen to limit liability to defects that are the result of negligence. By exempting the manufacturers from strict liability claims, the statute helps to ensure the continuing supply of blood and blood products. The statute is thus reasonably related to the purpose sought to be effected.; Equal protection also requires that members of the statutory class be treated alike under similar circumstances and conditions. Equal treatment must extend to both the privileges conferred and liabilities imposed. The court found that the plaintiffs' claim that the statute irrationally distinguished between blood product tort victims and non-blood product tort victims was without merit. The lack of man-made substitutable product for blood and blood products created the requisite difference in the classes to support a difference in treatment.; The court found to be without merit plaintiffs' claims that the statute lacked a reasonable basis because there was no empirical data proving that protecting blood providers from liability on implied warranty theories generates a more adequate supply of safe blood, and that there was a "tremendous difference" between hepatitis victims and AIDS victims. It recommended that the plaintiffs address their concern over the lack of empirical data to the legislature and found that the difference between AIDS and hepatitis to be without constitutional significance.

[15] Roberts v. Suburban Hospital Association Inc., 532 A.2d 1081 (Md. App. 1987).: FACTS: Plaintiff contracted AIDS from a blood transfusion during surgery. He sued the blood bank and the hospital in strict liability for their actions.; ISSUE: Whether Maryland law immunizes blood banks and hospitals from strict liability for blood transfusions which cause injury?; HOLDING: Although the statute in effect at the time of the transfusion protected blood banks from strict liability for only hepatitis claims, the court found that the common law protected them from strict liability claims for HIV as well.; REASONING: The court first found that providing blood for transfusion purposes was not the provision of a product, but rather the provision of a service. The contract between the parties was not for a product but for the expertise of the health care providers, the blood was subsumed within that relationship and not separate from it. The statute in effect at the time of the suit protected blood banks from strict liability claims only concerning hepatitis claims. However, the court found that most states, either by statute or common law, protected blood banks from all strict liability claims. It found no reason to draw a distinction between HIV and hepatitis. The policy supporting one - that of protecting the continuing flow of blood - was the same as for the other. It therefore held that the common law protected the blood bank from a claim in strict liability for HIV infection.

[16] Hyland Therapeutics, Div. of Travenol Laboratories, Inc. v. Superior Court (Gallagher), 220 Cal.Rptr. 550 (Cal.App. 8th Dist. 1985).: FACTS: A hemophiliac contracted AIDS in 1984 after being treated with clotting products manufactured from human blood by Miles Laboratories, Inc. (of which Cutter Laboratories is a division) and Hyland Therapeutics (a division of Travenol Laboratories, Inc.). He subsequently died. His heirs sue the involved laboratories in negligence and strict product liability theories.; ISSUE I: Whether the California Blood Shield statute protects the manufacturers from liability without a showing of fault?; HOLDING: The blood shield statute protects the manufacturers.; REASONING: The California Blood Shield statute, Health and Safety Code, section 1606, states that "the procurement, processing, distribution, or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing the same, or any of them, into the human body shall be construed to be, and is declared to be, for all purposes whatsoever, the rendition of a service by each and every person, firm, or corporation participating therein, and shall not be construed to be, and is declared not to be, a sale of such whole blood, plasma, blood products, or blood derivatives, for any purpose or purposes whatsoever." Because these activities are designated to be services and not sales, a consumer of a product may not sue the manufacturer or distributor of that product for injury incurred through the use of the product without proving that the manufacturer or distributor was negligent.; ISSUE II: Is the statute constitutional?; HOLDING: The statute does not violate the Constitution.; REASONING: In order for the statute to be constitutional it must be rationally related to the legislative goal. Plaintiffs argued that the purpose of section 1606 was to shield blood donors and suppliers from strict liability for injury arising out of the therapeutic injection of blood into a human being, thereby encouraging and promoting the constant availability of an adequate blood supply. They argued that the need to protect this particular therapeutic need is limited to blood for transfusion purposes and should not be extended to commercial preparation of blood products for therapeutic purposes other than transfusion. The court found that the public policy supporting the need to protect those who supply blood for transfusions supported a similar need to protect those who manufacture blood products. The protection granted by the statute was therefore rationally related to the legislative goal and was constitutional.

[17] Doe v. Cutter Biological, Miles Laboratories, Travenol Laboratories, Armour Pharmaceutical Corp., Alpha Therapeutics Corp., and the USA, U.S.D.C. for the District of Hawaii, AIDS Litigation Reporter 1/27/89 (Summary dismissal).

[18] Doe v. Red Cross Blood Services, 1988 U.S. Dist. LEXIS 16360 (S.C. 1988), AIDS Litigation Reporter 3/24/89.: FACTS: Plaintiff, Jane Doe underwent an operation on January 9, 1985 during which she was given a unit of blood which apparently was HIV infected. The American Red Cross, South Carolina region, had collected the blood five days earlier from a volunteer donor. No screening test was performed on the blood because at the time there was no direct test for HIV antibody available. Doe maintained that the Red Cross was negligent in failing to employ a surrogate test to identify and exclude blood donors who were in high risk groups. She further alleged that the nurses who drew the blood from the donor were reckless, wanton and grossly negligent in failing to permanently disqualify the infected donor five months earlier based upon the health history he gave at that time.; Doe claimed that although the practice in the blood banking industry at the time was not to use surrogate tests to screen out high risk donors the Red Cross actions can be considered apart from the conduct of those generally recognized and accepted by other blood banks.; The Red Cross responded by arguing that the standard by which professionals are measured is that of the generally recognized and accepted practices in the profession. They argue that the transfusion of blood is a professional medical service and thus they are covered by this separate standard of care.; Doe further alleged that the statutory limitation on damages recoverable from a charitable organization violated equal protection.; ISSUE I: Whether transfusing blood is a professional medical service which is to be judged by the separate standard of care of the generally recognized practices of the profession?; HOLDING: The transfusion of blood is a professional medical service; the blood bank's conduct is to be measured against that of other members of the blood banking community.; REASONING: Statutes relating to other aspects of the blood banking business characterize it as a skilled medical service. The court therefore held that the provision of that service should be treated as a professional service. Therefore, in order to maintain an action against a blood bank, the plaintiff must prove that the blood bank's conduct did not conform to the generally accepted and recognized conduct of the service evidenced by that of other blood banks. Here, where there was no test for AIDS and the common practice was not to use surrogate tests, the South Carolina Red Cross would not be found to be negligent as its conduct conformed to that of other blood banks.; ISSUE II: Whether the statutory cap on damages recoverable from a charitable organization violated equal protection?; HOLDING: The equal protection clause is not violated by the cap on recoveries from charitable institutions.; REASONING: The equal protection clause requires that the classification bear a reasonable relation to the legislative purpose sought to be effected, that the members of the class are treated alike under similar circumstances and conditions, and that the classification rests on some reasonable basis. The court found that the purpose of the classification was to provide different treatment for charitable organizations. The legislative intent was to encourage such endeavors by protecting them from unlimited liability. The court found that the legislative cap on recoveries was reasonably related to the statutory intent.; The plaintiff claimed that the statute was unconstitutional because it impacts differently on large and small charitable organizations. The court found that these varying impacts did not offend the equal protection clause.; The plaintiff also argued that the statute affected plaintiffs unconstitutionally in that it affects only those whose claims for actual damages exceed the cap. The court found that potential plaintiffs were not treated differently because the same monetary cap applies equally to the entire class of plaintiffs.; The court found that the statute was rationally based in that there was a reasonable relationship between promoting charitable activities and limiting the liability of entities that engage in such activities.; The court permitted the addition of individually named defendants to remain. The statute which protects charitable organizations permits the naming of individual defendants only if either the charitable organization cannot be determined at the time of the suit or if the plaintiff alleges that the individually named employees acted recklessly, wantonly or grossly negligent. Because plaintiff alleged that the nurses acted in such a manner, she was permitted to sue the nurses individually.

[19] Segal v. Cutter Biological Division of Miles Laboratories, S.Fla. AIDS Litigation Reporter 6/24/88 (Announcement of jury verdict).: A jury verdict in one of the first blood products cases to reach that stage found for the defendant laboratories. The plaintiff had claimed that the blood bank had failed to use due care in reviewing the health status of a donor who later died of AIDS. The jury verdict came after three hours of deliberation. NB: the donor in this case is the same as in Jones v. Miles (a Georgia case).

[20] Carroll v. Blood Center of Southeastern Wisconsin, Wisconsin Circuit Ct., Milwaukee Co., AIDS Litigation Reporter 3/24/89 (Announcement of settlement).: FACTS: During a heart operation, plaintiff, a 63 year old man, received HIV infected blood. He sued the blood supplier on the ground that it failed to properly screen the units he received. The plaintiff alleged that the blood bank had begun testing on March 7, 1985. The blood infused into plaintiff had been received the day before but remained in the hospital untested until it was infused into the plaintiff in April 1985. At trial, the plaintiffs argued that the blood bank was negligent because it had distributed the blood without testing it for HIV, had not replaced the blood that had been distributed when supplies were sufficient to do so; and did not notify its client hospitals of the situation.; JURY DECISION: After trial, a jury awarded the plaintiff $3.9 million: $2.5 million for past and future pain, suffering and disability; $1 million for his wife's loss; $89,000 for past and anticipated medical expenses; and $345,000 for lost earning capacity.; SETTLEMENT: On March 6, 1989, plaintiff's attorney announced that the parties had agreed to a settlement in order to avoid a lengthy appellate process. The plaintiff would receive an undisclosed amount less than the jury verdict but, according to his attorney, "very favorable and still very much a record in dollars in AIDS cases."

[21] Thomas v. Mississippi Blood Services, 1st Judicial Circuit Ct., Hinds Co., AIDS Litigation Reporter 3/10/89 (Decision) and 2/10/89 (Announcement of filing of motion for dismissal).: A motion to dismiss a complaint against defendant was granted upon the agreement of both that Mississippi Blood Services did not participate in the collection of plasma, separation, testing, manufacture, production, distribution or sale of Factor VIII which allegedly infected plaintiff.

[22] Sloan v. Central Indiana Regional Blood Center, Circuit Ct., Warren Co., Indiana, AIDS Litigation Reporter 7/15/88 (Announcement of settlement).: The widower of a woman who received HIV-infected blood during a transfusion before 1984 has settled his action against the blood bank. The amount of the settlement, although not made public, must be less than $500,000, the cap placed on malpractice awards by statute.

[23] Baker v. Wadley Blood Center, Texas District Ct., Denton Co., Texas, AIDS Litigation Reporter 1/13/89 (Announcement of jury verdict).: A jury rejected the claim of the widow of a man who received HIV- tainted blood that the blood bank was negligent in their screening of donors, failure to use surrogate tests, and failure to prevent high risk individuals from donating blood. The blood was transfused before the HIV test was available. The defense had argued that the infection resulted from an "unavoidable accident" stemming from a "new and independent cause not reasonably foreseeable."

[24] C.W. v. Belle Bonfils Blood Center, District Ct., Denver Co., Colorado, AIDS Litigation Reporter 4/14/89. (Announcement of jury award).: A jury found that Belle Bonfils Blood Center negligently supplied unscreened HIV-infected blood which was transfused into C.W. although tests for HIV were available 9 days before. Prior to C.W.'s transfusion, the blood bank had tested 327 units of blood but did not inform either the hospital nor the attending physician of the availability of screened blood. The physician testified that although the procedure was necessary, it could have been postponed for the necessary hour in order that the tested blood could arrive.; The jury found that the blood bank was negligent in using untested blood units from the blood bank inventory and rejected defense claims that the risk of HIV transmission was minor. C.W. was awarded $2,225,000 for pain and suffering, $1,400,000 for financial losses, and $1,350,000 for physical impairment and disfigurement. Her husband was awarded $500,000 for loss of consortium.; The award is subject to challenge under Colorado's tort-reform law which limits non-economic damages in such cases to $550,000.

[25] Dale v. Irwin Memorial Blood Bank, Superior Ct., San Francisco Co., California, AIDS Litigation Reporter 4/14/89 (Super. Ct., Cal. 1989), (Announcement of ruling).: The trial court ruled that the award to a woman, who argued that she was infected with HIV after being transfused with HIV-infected blood provided to her by Irwin Memorial Blood Bank, will be limited by the Medical Insurance Compensation Recovery Act to $250,000. The court rejected the plaintiff's arguments that the blood bank was not a clinic, a health care facility or dispenser as required under the act. The court held that the blood bank was a supplier of health care services and came within the act.; On a separate matter, the court ruled that the time period within which the plaintiff must file her claim began from the time she was diagnosed as suffering from ARC and not from when she tested HIV- positive. The one year period would thus run from March 1987 and not March 1986. Her suit was therefore filed timely.

[26] Cushing v. Lily Truck Leasing, Superior Ct., Suffolk Co., Mass., AIDS Litigation Reporter 2/10/89 (Announcement of jury award).: A Massachusetts jury awarded a truck driver $3 million for having become infected with HIV during an operation necessitated by an accident caused by his employer's negligent maintenance of a truck. A steering malfunction caused him to veer off the road and he suffered a serious leg injury. During the operation on his leg he was transfused with HIV infected blood. The jury found that Cushing would not have contracted AIDS but for the negligence of the trucking company in not keeping the truck in good repair.; The blood bank was not sued because the operation took place before the blood could be reasonably tested for HIV.

[27] Porter v. Irwin Memorial Blood Bank, Superior Ct., San Francisco Co., California, AIDS Litigation Reporter 1/13/89 (Announcement of private settlement).: An out-of-court settlement was reached between the estate of an attorney who died of transfusion-contracted AIDS and the blood bank that supplied the blood. The deceased was transfused with HIV infected blood during a March 1983 operation. The blood was from among a group of 333 hepatitis B-tainted units that, instead of being destroyed, were distributed by the blood bank. The amount of the settlement was not disclosed.

[28] Boatwright v. Parklane Medical Center, AIDS Litigation Reporter 3/10/89 (Announcement of private settlement of lawsuit).: Plaintiffs filed a complaint against the Parklane Medical Center for allegedly transfusing HIV-tainted blood into him during an operation in 1985. The parties settled out-of-court in a settlement. Estimates are that the agreed upon damages were over $900,000

[29] Doe as parents of Doe v. Children's Medical Center et al., Court of Common Pleas, Montgomery Co., Ohio, AIDS Litigation Reporter 3/11/88 (Announcement of mistrial and complaint).: The family of a fourteen year old boy who developed AIDS from a tainted blood product filed suit against the hospital for misdiagnosing his condition. The hospital diagnosed the boy as having hemophilia and treated him with a blood clotting factor which was tainted. The hospital performed only one blood test when it made its original diagnosis. The parents claim the diagnosis was incorrect. The hospital claimed the boy had a rare form of hemophilia which goes into remission at puberty.; After a trial, the jury was unable to reach a verdict and a mistrial was declared.

[30] Karson v. United Blood Services, Circuit Court of Cook County, Illinois County Department, Law Division, No. 87 L 21945, August 8, 1988 (Source: Richard C. Bollow, Esq., Law Offices, Jenner & Block, Attorneys for Defendant). Defendant's Memorandum In Support Of Its Motion For Summary Judgment.: FACTS: In January 1982, plaintiff received transfusions of blood, contaminated with HIV, which were provided by defendant. Plaintiff first became aware of his HIV infection in August 1986 and filed a personal injury complaint in late 1987. He died in April 1988 and the administrator of his estate brought this action.; The plaintiff contends defendant was negligent because (1) defendant failed to screen donors in 1982 who were in high risk groups who may have had AIDS, and (2) defendant failed to test blood received from blood donors for non-A, non-B hepatitis when persons with that type hepatitis were allegedly at high risk for having AIDS.; Defendants contend that Illinois blood banks, such as the defendant, may be held liable only for the failure to exercise due care, as measured by the current state of the medical arts; and that pursuant to this statutory standard of liability, defendant exercised due care and therefore cannot be held liable for damages under theories of negligence liability.; Moreover, defendant contends in January 1982 when plaintiff received his transfusion it was not known that AIDS was spread by blood; it was not known that AIDS was the result of a virus; the virus had not been identified; no test that could indicate exposure to AIDS was yet available; no blood bank screened donors who were in high risk groups who might have AIDS; and no blood bank performed tests for non-A, non-B hepatitis as a surrogate for testing for AIDS.; ISSUE I: Was defendant negligent by failing to screen donors in 1982 who were in high risk groups who may have had AIDS?; ISSUE II: Was defendant negligent by failing to test blood received from blood donors for non-A, non-B hepatitis when persons with that type hepatitis were allegedly at high risk for having AIDS?; HOLDING: Summary judgment for the defendant was granted by Circuit Court Judge Edwin M. Berman. No notice of appeal was filed. The court did not issue an opinion.; REASONING: According to defendant's counsel: The reasons given orally by Judge Berman were not transcribed and do not appear in the order entered. However, the Judge's reasons were that in January 1982 it was not known that HIV could be transmitted through blood or blood products.

[31] Collins v. American Red Cross, E.D. Pa., AIDS Litigation Reporter 3/24/89 (Complaint).: FACTS: The widow of a detective sued physicians, a hospital and the American Red Cross for their failure to warn her husband of the risks of blood transfusions prior to his undergoing heart surgery in 1983. Plaintiff claims that the defendants - the treating physicians, hospital and blood supplier - were negligent in failing to warn of the then known risks of infection from transfused blood; that they were engaged in an "ultrahazardous activity and therefore liable for their conduct even without a showing of negligence; that they supplied a defective product for which they are liable under the theory of strict products liability.

[32] Huskey et al. v. Cutter Group Products, Miles Laboratories, Hyland Therapeutics and Baxter Healthcare Corp., U.S.D.C. E.D. Tenn., AIDS Litigation Reporter 8/12/88 (Announcement of complaint).: FACTS: In 1973, Billy Bruce Huskey was diagnosed as hemophiliac. He was treated with blood clotting products produced by defendants. In 1985, he was found to be HIV positive. Plaintiffs sued the blood manufacturers on various theories: strict liability, on the ground that the blood products were designed so that they became defective and unreasonably dangerous; negligence in that defendants failed to warn of the risk of contracting HIV; and upon a theory of general negligence on the ground that defendants failed to exercise due care in the manufacture of these products.

[33] Ray v. Cutter Laboratories et al., U.S.D.C. S.D. Fl., AIDS Litigation Reporter 5/13/88 (Announcement of complaint).: FACTS: The parents of three HIV-infected hemophiliac sons sued the manufacturer of the blood clotting factor with which they were treated for negligent manufacture, failure to warn and strict liability. The boys began treatment with the product prior to the approval of the ELISA test.

[34] Smith v. American National Red Cross, U.S.D.C. Md., AIDS Litigation Reporter 2/26/88 (Announcement of complaint).: FACTS: Plaintiff sued the blood bank which provided the blood transfused into him in early 1985. He claims that the blood bank's failure to perform surrogate marker tests on the donated blood for AIDS was negligent and reckless behavior which renders the bank liable in strict liability, breaches of warranties and lost of consortium.

[35] Wyatt v. Seattle Plasma Center, U.S.D.C. W.D. Wash., AIDS Litigation Reporter 11/13/87 (Announcement of lawsuit).: Plaintiffs alleged that the blood bank and various laboratories that supplied the blood which made the clotting factor given to their four year old hemophiliac son was tainted with HIV. They claimed that the blood bank was negligent in the manner it screened donors. They also claim that the blood bank made warranties that any virus in the blood would be inactivated by heat treatment and that the product was free from AIDS contamination.; Plaintiffs also sued on the theory of market share liability. Under this theory, plaintiff alleged that the AIDS-contaminated products they purchased are generic and that they may not be able to identify which defendants collected, produced or marketed the contaminated products which caused the specific injury. Liability would be apportioned through an evaluation of defendants' market shares.

[36] Osborn v. Irwin Memorial Blood Bank, Superior Ct., San Francisco Co., California, AIDS Litigation Reporter 2/24/89 and 2/10/89 (Motions).: FACTS: Plaintiffs are Michael Osborn, a five year old, and his parents. Prior to Michael's undergoing heart surgery, his parents went to defendant blood bank regarding blood needed for his surgery. The blood bank receptionist misrepresented to them information regarding the blood bank's directed donor program such that the parents agreed to have the boy transfused with blood collected from blood bank donors. Some of the transfused blood was infected with HIV. Michael became infected with HIV.; The parents sued and the jury awarded them $750,000. The defendants asked that the court reduce the award on the ground that it was in excess of $250,000, the statutory limit set by the California Medical Insurance Compensation Reform Act.; ISSUE: Whether the actions of the blood bank amounted to negligent conduct by a professional medical service organization such that recovery would be limited by the statute.

[37] Marcella v. Brandywine Hospital, Court of Common Pleas, Chester Co. Pennsylvania, AIDS Litigation Reporter 7/29/88 (Announcement of complaint).: The plaintiff received a series of transfusions in early 1985 which she contends infected her with the HIV. She sued the hospital and blood bank for their negligent failure to test the blood.

[38] Doe v. Werner, Circuit Ct., Milwaukee Co., Wisconsin, AIDS Litigation Reporter 5/27/88 (Announcement of complaint).: A transfusion-infected woman (Doe) who underwent open heart surgery on March 15, 1985, filed suit against the blood bank, the hospital and her physician for negligence. The claim against the blood bank rests on a claim that they failed to properly screen the donated blood. The claim against the hospital is based on a claim that it failed to test the blood, failed to apprise her of the risks of blood transfusions and failed to properly train the treating physicians so that they were aware of the ELISA test. The action against the treating physicians is grounded on claims that they were negligent in failing to advise Doe of the possibility of postponing the surgery in order to test the blood and failing to advise Doe of the risks of blood transfusions.

[39] Polikoff v. Regents of the University of California for San Diego County, Superior Ct., San Diego Co., California, AIDS Litigation Reporter 2/12/88 (Announcement of lawsuit).: FACTS: In January, 1984, the plaintiff's now deceased husband underwent open heart surgery. The husband contracted both hepatitis B and AIDS. The wife was infected by her husband. She sued the hospital for negligence in failing to properly screen the transfused blood. She claims that had the blood been properly screened for hepatitis B, it would have been discarded.

[40] Fox v. Stanford University Medical Center, Superior Ct., Santa Clara, California, AIDS Litigation Reporter 2/12/88 (Announcement of complaint).: The estate of a transfused AIDS patient filed suit against the hospital where the surgery was performed and against the decedent's treating physicians for not apprising them that the hospital was scheduled to begin screening blood a month later. The surgery was elective and could have been postponed until the blood had been screened.; The plaintiffs charged that the hospital deliberately, and with wanton disregard to the health of the patients, kept this information secret so as to not interfere with the hospital's surgery practice. They allege that had the information been made public, a virtual shut-down of the surgical procedures involving transfusions would have occurred and that the hospital, knowing this and concerned about the fiscal effects of such a shut-down, withheld the information.

[41] Matheson v. Irwin Memorial Blood Bank, San Francisco Superior Ct., No. 864196. SOURCE: ACLU and AIDS Policy & Law 1987 (Complaint filed 9/18/86).: FACTS: In 1983, plaintiff was transfused with HIV infected blood provided by defendant blood bank. Plaintiff initiated litigation against the blood bank. Subsequent to filing the lawsuit, the plaintiff had a brain biopsy positive for toxoplasmosis, a parasitic infection associated with AIDS, and committed suicide.; ISSUE I: Whether defendant was negligent in providing blood contaminated with HIV, even though the blood in question was screened more than a year before a screening test was available?; ISSUE II: Whether defendant could be held liable for plaintiff's suicide?

[42] Allen v. Irwin Memorial Blood Bank, San Francisco Superior Ct., No. 863602, Date filed: 9-4-86. SOURCE: ACLU: clipping on [Buraff Pub. 1986, Washington, D.C.].: FACTS: Plaintiff received HIV-contaminated blood units while pregnant in 1982. Defendant blood bank notified her of possible contamination in September 1985 at which time she was called in for a blood test for antibodies to HIV. The test showed a positive result. Plaintiff gave birth to two children diagnosed as HIV positive. One died of AIDS. Plaintiff contends that the blood bank was negligent and is therefore is liable for the wrongful death of her child and intentional infliction of emotional distress to her and her family.; ISSUES: Whether the blood bank was negligent?; Article also cites Borchelt v. Irwin Memorial, SF Superior Ct No. 838193; APL Aug. 27, p.1.; Settlement of case brought by family of a 72-year old female who died after receiving "infected" blood in 1983. Infection appears to have been with an "AIDS-associated virus".

B. Blood Donor Confidentiality: Discovery of the Blood Donor's Identity

[43] Mason v. Regional Medical Center of Hopkins County, Trover Clinic, Inc., and John Doe, 121 F.R.D. 300 (W.D. Ky. 1988).: FACTS: Plaintiff sued the hospital (at which she received a transfusion which allegedly infected her with HIV) as well as the blood bank that provided the infected blood. She requested that the court order the blood bank to provide her with the identity of the blood donor so that she could question him about the procedures used by the blood bank regarding screening. "John Doe" sought to intervene on behalf of the donor to prohibit the disclosure of the donor's name.; ISSUE: Whether concern for the privacy rights of the donor and that disclosure might inhibit others from donating blood and thereby endanger the nation's blood supply can be met and still provide the plaintiff with the access she needs to proceed with her suit?; HOLDING: The plaintiff's privacy rights can be protected by a properly fashioned protective order such that the plaintiff may have access to the information.; REASONING: While the court found that the constitutional right to privacy had not yet been extended to preclude the disclosure of blood donor's identities, it found that the state rules regarding discovery require that discovery not be used to harass or annoy, and that conditions be imposed by the court to prevent embarrassment, etc. The court ordered John Doe to respond to interrogatories, but also ordered that procedures, such as a limitation on the number of lawyers per party who could have access and a prohibition against further disclosure, be followed to maintain confidentiality.; Regarding the public policy question, the court opined that although other courts (Taylor v. West Penn Hospital, No 6087-00206, Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division 1987 and Rasmussen v. South Florida Blood Services, Inc. 500 So. 2d 533 Fla. 1987) previously had "little difficultly" finding that revelation of donors' names would deter voluntary blood donations, in Tarrant County Hospital District v. Hughes, (734 S.W.2d 675 (Tex.App. - Ft.Worth 1987, cert. den. 108 S.Ct.1027) the court reached the opposite conclusion. The court here stated that such policy making was for the legislature to make, not the court, and did not decide the issue.

[44] Belle Bonfils Memorial Blood Center v. District Court in and for the County of Denver, et al., 1988 Colo. LEXIS 174 (S. Ct. of Colo. Nov. 28, 1988) as amended; 763 P.2d 1003 (1988), petition for rehearing denied Nov. 28, 1988; amended Jan. 10, 1989.: FACTS: K.W., her husband and her son sued the Blood Center for alleged negligence in the manner in which they screened blood donors and tested blood. They alleged that this negligence allowed blood infected with HIV to be distributed to hospitals and to be transfused into K.W. who later contracted AIDS.; K.W. sought the name of the donor of the infected unit of blood. By agreement between the parties, she was provided with the donor's card with identifying information deleted. The card showed that of the 30 screening questions the donor was required to answer, he answered 4 in a manner which required further investigation by the blood bank personnel. The card further showed some notation indicating some additional information regarding the four questions, but did not provide sufficient information from which it could be determined if the blood bank's screening policies had been followed or, if they were, in what manner.; The trial court ordered that the blood bank provide the name of the donor to the court so that K.W. could provide the court clerk with written interrogatories to send to the donor to answer.; ISSUE: Whether providing discovery in this fashion violated the donor's right to privacy or the public policy to encourage blood donations?; HOLDING: The discovery procedures established by the court balanced the plaintiff's right to know with the donor's privacy interest.; REASONING: The donor's name was not protected by the doctor-patient privilege. The doctor-patient privilege is statutory and thus the terms of the statute must be strictly interpreted. Here, the staff person drawing the blood was not a physician nor was the name and address taken as information needed to diagnose or treat the donor. The drawing of blood for a donation did not fall within the doctor- patient privilege.; Sections 25-4-1402,3, et seq. of the mandatory reporting statutes (which provide for the confidentiality of the names of HIV positive persons reported to health authorities) the mandatory reporting statutes was not enacted until after the motion for disclosure was made. The court held it to be prospective and did not protect names already recorded. Therefore those statutes did not protect the donor's identity.; The court balanced the public interests, the interest of the donor and those of the plaintiff as well as the societal interest in allowing the plaintiff to obtain full discovery. The court found that because there was a genuine issue of negligence the interests must be balanced in allowing the plaintiff information needed to prosecute her claim. Under the circumstances of this case, the court determined that the public interest in not allowing blood banks to escape liability for negligence outweighed the policy of keeping donor's names strictly confidential to encourage the donation of blood.; The dissenting opinion argued that the statute enacted to protect HIV positive people was meant to protect those names already recorded. The dissent argued that it would be anomalous to protect prospectively only. In addition, the dissent opined that further discovery from the donor himself was unnecessary to prove negligence because the information on the donor card was sufficient. Finally, the dissent argued that the procedure created by the trial court would be burdensome to the donor, would have to result in additional interrogatories being filed by the blood bank, and might require the donor to obtain an attorney. The dissent argued that the disclosure and procedure placed an unnecessary burden on the donor and that therefore the request for further discovery from the donor should have been denied.

[44A] Rasmussen v. South Florida Blood Service, Inc., 500 So.2d 533, 56 A.L.R. 739 (Fla. 1987).: FACTS: In 1982, Plaintiff's now deceased husband was hit by a car and underwent surgery during which he was allegedly transfused with HIV infected blood. In her suit against the hospital, the plaintiff served a subpoena duces tecum on the supplying blood bank requesting "any and all records, documents and other material indicating the names and addresses of the (51) blood donors." The blood bank sought a court order permitting it to refuse to respond to the subpoena.; ISSUE: Whether the privacy interests of volunteer blood donors and a blood service's and society's interest in maintaining a strong volunteer blood donation system outweighed a plaintiff's interest in discovering the names and addresses of the blood donors in furtherance of discovery?; HOLDING: Maintaining the confidentiality of the blood donors' names outweighed the private interests of the plaintiff.; REASONING: Although the court agreed with the blood bank's argument that the blood donors' rights of privacy were protected by state and federal constitutions, it did not see the need to use the stricter test mandated by constitutional analysis. Rather, the court, relying upon Florida's discovery statutes, balanced the plaintiff's interests against those of society and the donors and found in favor of confidentiality.; It found the interests involved were adequately protected under discovery rules. Under the Florida discovery rules, any non- privileged matter that is relevant to the subject matter of the action is discoverable. However, the discovery rules confer broad discretion on the trial court to limit or prohibit discovery in order to "protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Under this authority, a court may act to protect the privacy of the affected person. In deciding whether a protective order is appropriate in a particular case, the court must balance the competing interests that would be served by granting discovery or by denying it.; The discovery rules themselves provide a framework for judicial analysis of challenges to discovery on the basis that the discovery will result in undue invasion of privacy. This framework allows for broad discovery in order to advance the state's important interest in the fair and efficient resolution of disputes while at the same time providing protective measures to minimize the impact of discovery on competing privacy interests. The plaintiff had argued that she might not need to contact any of the donors because her inquiry could be limited to simply comparing names of the donors with the names of known AIDS victims in public records. However, because the subpoena did not contain any restrictions upon the use of the information sought, the court found that the plaintiff's claims of limited use were "disingenuous." The court determined that without the ability to guarantee against further non-disclosure, no disclosure could be granted.; The court then analyzed the societal interest in the continued supply of volunteers for blood donations. It found that society had a vital interest in maintaining a strong volunteer blood supply, a task that has become more difficult with the emergence of AIDS. The donor population has been reduced by the necessary exclusion of potential blood donors through AIDS screening and testing procedures as well as by the unnecessary reduction in the donor population as a result of the widespread fear that donation itself can transmit the disease. In light of this, it is clearly in the public interest to discourage any serious disincentive to voluntary blood donation. The court determined that there was little doubt that the prospect of inquiry into a donor's private life and potential association with AIDS would deter blood donations. It concluded that society's interest in a strong and healthy blood supply would be furthered by the denial of discovery in this case.; The court also addressed the plaintiff's interest in being able to fully litigate her claim. This interest "parallels the state's interest in ensuring full compensation for victims of negligence." However, it determined that the discovery order requested here would do little to advance that interest. It determined that the probative value of the discovery sought by Rasmussen was "dubious at best," while the potential for significant harm to most, if not all, of the fifty-one unsuspecting donors in permitting such "a fishing expedition."

[45] Gulf Coast Regional Blood Center v. Houston, 745 S.W.2d 557 (Tex. 1988).: FACTS: Houston was the trial judge presiding over litigation in which Baker, et al. sued Gulf Coast Regional Blood Center for negligence in the procurement of blood donations which Baker et al. alleged led to George Baker's becoming infected with HIV. As part of their pre-trial discovery, the Bakers sought identifying information about donors. After a hearing, the trial judge ordered the blood bank to disclose:; The court ordered that this information and documents be submitted to the court for in camera review before disclosure to the Baker's attorney and also issued an order further protecting the disclosed information and placing strong restrictions on the use and availability of donor information.; The blood bank appealed claiming that the order breached the usual confidentiality of blood donors and would jeopardize the continued supply of voluntary blood. It additionally claimed that the order violated the donors' constitutional right of privacy and that their right to privacy outweighed the Bakers' right to discover the donors' identities.; ISSUE: Whether the right of a plaintiff to discover the identities of seropositive blood donors in order to prosecute a suit against a blood bank for injuries incurred from infected blood outweighs the donors' right to confidentiality when the information is disclosed under conditions intended to protect that confidentiality?; HOLDING: The plaintiff's right to restricted discovery of the donors' identities outweighs the donors' right to unfettered confidentiality.; REASONING: While the court found that the donor's identities fell within the constitutional right to privacy, it opined that the right was not unlimited. Privacy interests could therefore be invaded when outweighed by a competing interest. Here, the blood bank failed to establish a societal interest paramount to the plaintiff's right to discovery of the donors' identity. The court rejected the blood bank's claim that the voluntary blood supply could be compromised if the identifying information were not held strictly confidential. It found that the conditions ordered by the trial court would provide sufficient protection. The court rejected the argument concerning the applicability of the recently enacted legislation protecting the identities of persons who give health information because it was enacted after the commencement of the suit and its effects were not retroactive.

[46] Doe v. University of Cincinnati, 1988 WL 137097 (Ohio App.).: FACTS: In July, 1984, during the course of an operation for the removal of a malignant brain tumor at defendant's hospital, plaintiff received a blood transfusion. The blood had been supplied from a blood bank which collected blood only from volunteers. The plaintiff was later found to be infected with HIV. She sued the hospital for negligence in having supplied her with infected blood. At the time of the blood donation and the surgery, no antibody test for HIV existed. The blood bank claimed to have screened its donors by providing them with a form requiring them to disclose name, address, social security number and health background. In addition, it provided potential donors with an AIDS information booklet which defined high risk groups.; Plaintiff sought pre-trial discovery of the HIV infected blood donor in order to determine if in fact those procedures were followed.; The defendant argued that providing the name of the blood donor, even on the condition that neither party would contact the donor, nor use his/her name in the court papers, etc., would violate the donor's right to privacy, Ohio's physician-patient privilege statute, and the rules concerning discovery of evidence which require the court to protect against the revelation of information that is "embarrassing, ..."; ISSUE: Whether a blood donor's right to privacy must yield to a plaintiff's need for information in order to litigate his or her claim?; HOLDING: Revelation of identifying information about an HIV infected blood donor was improper where the plaintiff presented no evidence that the information was required in order to proceed with the case.; REASONING: The court determined that the blood donor's right to privacy was protected by the state and federal constitutions, and not by the physician-patient privilege. The privilege did not exist in the blood donor situation. The statute that established the privilege to protect communications between a physician and patient defined the relationship as that of a treating one, and requires that the communication be made in the course of that treatment. It also required that the communication be made to a doctor. Here, the person who drew the blood was not a doctor, the information provided to the blood bank was not given for the purposes of treatment nor was the donor there for treatment. Hence there was no doctor-patient relationship and the information was not protected under the statute.; The donor's identity, however, will be protected under the constitutional right of privacy. That right involves, among other things, the right to avoid disclosure of personal matters. Where, as here, significant harm would befall the donor should his/her name be released, the right of privacy would outweigh the plaintiff's need to know.; The court further determined that disclosure, even under restrictive conditions, was inappropriate. The real harm lay in actual disclosure of the name.

[47] Krygier v. Airweld, Inc., 137 Misc.2d 306, 520 N.Y.S.2d 475 (1987).: FACTS: Plaintiff's husband was severely burned by an acetylene torch and underwent surgery during which he received HIV-infected blood from the New York Blood Center. The plaintiff sought discovery of the donors' identity in order to prepare for trial.; ISSUE: Whether the law protects against the disclosure of the donors' names?; HOLDING: The law protects the donors' identities.; REASONING: The court found that New York's codification of the physician-patient privilege protected the donors' identification. That statute precludes the disclosure of information which the doctor acquired in attending the patient and which was necessary to enable him or her to act in that capacity. The court found that since the blood is collected by either a specially trained physician, registered nurse, licensed practical nurse or phlebotomist, the necessary confidential relationship was established.; The court reviewed the policy supporting the physician-patient privilege. In essence, the statutory privilege seeks to protect the privacy of patients and prevent their embarrassment. Without such protection, the free flow of information necessary for proper diagnosis and treatment would be hampered.; The court found that the same reasoning was applicable to the relationship between a blood donor and the blood bank, especially when release of information might lead to embarrassment. The court therefore found that based only on New York's statutory protections, it would protect the donor's anonymity under its authority to issue protective orders "to prevent unreasonable annoyance, ..., embarrassment, . . . to any person." It found that such protection was necessary to maintain the free flow of blood and that that interest outweighed the plaintiff's right to disclosure of evidentiary material necessary to the prosecution of her suit. The court determined that since the blood was transfused before the existence of the antibody test for HIV, the liability of the blood bank would be premised on their screening and investigative procedures. The court found that "exposing donors to public scrutiny to determine what they may have told NYBC has only marginal utility in advancing the plaintiff's theory of liability."

[48] Tarrant County Hospital District v. Hughes, 734 S.W.2d 675 (Tex. 1987).: FACTS: A patient at Tarrant County Hospital, the child of Belinda Jackson, was given a blood transfusion. Jackson alleged that the blood was infected with HIV. In her suit against the hospital Jackson sought disclosure of the names of the donors of the blood used in her daughter's transfusion. The trial court ordered disclosure under very strict conditions, including a prohibition against contacting the donors either directly or indirectly. The hospital appealed on the ground that such disclosure would violate the donor's right to privacy and that the societal interest in maintaining a "healthy and effective blood donor supply clearly overrides any legitimate interest of the plaintiff in the disclosure of the blood donors' identities."; ISSUE I: Whether a plaintiff's right to information necessary to litigate her claim outweighs the donor's right to privacy?; HOLDING: The plaintiff's right outweighs the donor's privacy.; REASONING: The court held that the donor's identity did not fall within the statutorily protected privilege. The court determined that there was no physician-patient relationship on which confidentiality could be predicated. The donor had not come for treatment; the person who performed the screening was not a physician.; REASONING: The court disagreed with the Florida decision in Rasmussen. The Texas Supreme Court held that the trial court order compelling the hospital to identify blood donors was not an impermissible violation of their rights to privacy. It further held that the hospital had not established a societal interest that overrode the Jackson's right to discovery of the blood donors' identities.; In reaching this decision, the court applied a balancing test comparing the interest served by the order of disclosure, a state action, with the donors' interest in privacy. It found Jackson's interest in the identity of the blood donors legitimate. Without the information, it was unlikely she would be able to prosecute her cause of action against the hospital. It also found that there was no evidence presented to support the hospital's contention that the blood donors possess a need of anonymity greater than Jackson's need.; The court found that the trial court's order evidenced a "proper concern for the individual's right of privacy." It therefore found that the order did not establish an invasion of any constitutionally protected right of privacy of the blood donors. It therefore upheld the order granting conditional disclosure.; ISSUE II: Whether the order, crafted to protect the confidentiality of the donor and assist the plaintiff, hampers the maintenance of the blood supply?; HOLDING: The conditions placed on disclosure do not impair the protection of the blood supply.; REASONING: The trial court's order afforded the donors protection from public disclosure by its direction that the "plaintiff shall not directly or indirectly contact any 'donor' identified through records produced under this order nor undertake further discovery regarding such 'donors' until permitted to do so by further order of this court." The court held that the trial court's discovery order included adequate safeguards against the improper disclosure of the blood donors' identities.

[49] Stenger v. Lehigh Valley Hospital, Court of Common Pleas, Lehigh Co., Pennsylvania, AIDS Litigation Reporter 1/13/89 (Order).: FACTS: Donna Stenger underwent surgery and was transfused with HIV infected blood. After she became infected, while still unaware of her condition, she infected her husband, and also gave birth to a son who was also infected. The family sued the blood bank for negligence.; As a part of their motion for discovery, the family requested disclosure of the identity or identities of the donor/s who provided the blood transfused into Mrs. Stenger. The blood bank refused and moved for a protective order permitting them to not disclose the information. They argued that the identities are within the doctor- patient privilege and confidential.; ISSUE: Whether the names of the donor were privileged and thus beyond the reach of discovery?; HOLDING: The identities of the donors were privileged and beyond the reach of discovery.; REASONING: The court held that the identities were privileged, but not under the doctor-patient privilege, because only communications received from the patient are covered by the doctor-patient privilege and the court did not find that the identifying information fell within the definition of patient communications. The privilege was established to prevent the disclosure of patient communications that are "blacken the person's reputation" and disclosure of one's name does not usually have the effect. Rather the court determined that disclosure of the names could pose a serious threat to the patient's right not to have personal matters revealed in violation of the right to privacy. Here such disclosure could indeed blacken the parties name. Disclosure of the information had to be within the donor's discretion. Thus the court held it was beyond the reach of discovery.

[50] Howell, et al. v. Spokane and Inland Empire Blood Bank, Superior Ct., Spokane Co., Washington, AIDS Litigation Reporter 9/23/88 (Order).: FACTS: Plaintiff, a 70 year old man, sued the blood bank which provided the blood for a transfusion he received during knee surgery for providing HIV-tainted blood. During pre-trial discovery, the plaintiff demanded disclosure of the donor's identity. The court ordered that the plaintiff's attorney be given access to the donor's medical records, but limited to discovery any information outside of the donor's "identity, address, employer, place of employment and telephone numbers." The court did not preclude release of the donor's name in the event that the initial information uncovers "information warranting additional investigative efforts."

[51] Doe and Doe v. American National Red Cross, Circuit Ct., Davidson Co., Tennessee, AIDS Litigation Reporter 8/26/88 (Opinion).: FACTS: Doe, who was allegedly infected during a transfusion with blood supplied by defendant, sought disclosure of the donor's identity. Doe sought this information in order to interview the donor about the procedures used by the defendant to detect HIV. Plaintiffs also wanted this information to determine if the donor was "a homosexual or a prostitute."; ISSUE: Whether revelation of the donor's identity would violate his or her right to privacy such that the donor's right to privacy outweighed the plaintiff's interest in winning the lawsuit?; HOLDING: The donor's right to privacy outweighed the plaintiff's interest in winning the lawsuit.; REASONING: The court determined that the decision regarding disclosure of the donor's identity would be governed not only by the Tennessee discovery statutes enacted to protect targets of discovery from annoyance, embarrassment, oppression, or undue burdens but also because it found that the donor had a constitutionally protected right to privacy which was substantial and which exceeded the plaintiffs' interest in proceeding with their lawsuit. In addition, the court cited the public interest in the continued protection of the blood supply. The court determined that because the plaintiffs wanted to find out facts about the donor's "intimate life . . . and to paint his private life in the ugliest of colors;" and that a "faint possibility that a future donor could face such a public attempt is enough to turn him away no matter how innocent his life may be" disclosure was improper.; The court rejected the Tarrant court's response in providing some information under protective order. The court here also noted in passing that the plaintiff chose to litigate the case under a pseudonym and protect their own identities to protect against embarrassment, etc. while seeking disclosure of the donor's.

[52] Glessner v. Blood Center of Southeastern Wisconsin, John Doe, et al., Wisconsin Circuit Ct., Milwaukee Co. SOURCE: LAMBDA (Complaint and Answer filed March 1987).: FACTS: Plaintiff's husband died as a result of being transfused with HIV positive blood during an operation.; Plaintiff claimed that John Doe, the anonymous blood donor, knew he was HIV positive and knew that the virus would be transmitted to someone.; The defendant argued that the action against him should be dismissed as the allegations against him are void as a matter of public policy as they are scandalous, indecent, without any reasonable basis, scientifically impossible to prove, and further that if this plaintiff is permitted to make baseless allegations against this John Doe without any reasonable basis for such allegation, then this John Doe and other blood donors will be unreasonably subjected to the expense and embarrassment of litigation which will destroy the confidentiality and privacy of John Doe and other donors.; ISSUE: Whether the plaintiff's complaint against an anonymous blood donor is proper?

C. Directed Donations

[53] Doe v. Johnston, Iowa Methodist Medical Center, et al., District Ct., Polk Co., Iowa, AIDS Litigation Reporter 9/9/88 (Announcement of complaint).: FACTS: Doe underwent a blood transfusion. The treating physician negligently ordered the transfusion in that he failed to warn Doe of the risk that the blood might be infected with HIV, that he failed to advise Doe of the option of using a donor-directed or autologous transfusion, and failed to obtain Doe's consent before the infusion.

D. Duty to Inform Recipients of Contaminated Blood

[54] Kobey v. Alvarado Hospital, Superior Ct., San Diego Co., California, AIDS Litigation Reporter 9/9/88 (Announcement of complaint).: FACTS: Plaintiff was infected with HIV-tainted blood during a transfusion at Alvarado Hospital. He sued the hospital, not for causing the infection, but for their delay in advising him of the use of the tainted blood. According to the plaintiff, the hospital was advised by the supplier in February 1987 that the blood used in the October 1986 operation had been tainted. He did not learn of his infection until six months later when he was re-hospitalized for a suspected brain infection.; Plaintiff contends that the six month delay caused an irretrievable loss in medical treatment, that might have reduced or delayed his deterioration. That during that time period, he might have infected his wife (who so far has tested negative), and that he ignorantly entered into business dealings that he cannot now complete due to his deteriorated state. He alleged he would not have entered into those agreements had he known that he was infected. The hospital said it never received the February 1987 letter allegedly sent to them by the blood bank.

E. Business Concerns

[55] Genetic Systems Corp. v. Abbott Laboratories et al., 691 F. Supp. 407 (D.D.C. 1988).: FACTS: Genetic sought to enjoin the execution of a contract between Abbott and the American Red Cross. After negotiating with both Genetic and Abbott for the purchase of HIV testing equipment, the Red Cross chose to give all of its business to Abbott. Genetic maintained that as the Red Cross handled 55% of all blood donations, this contract provided Abbott with more than 50% of the market and as such was a monopoly.; ISSUE: Whether Genetic presented sufficient evidence to convince the court that it will succeed in proving that the contract between Abbott and the Red Cross created a monopoly and that Genetic will suffer irreparable harm should the injunction not be granted?; HOLDING: The court was not persuaded that Genetic would succeed in proving that the contract created a monopoly nor that it would suffer irreparable harm if the injunction was not granted.; REASONING: In order to be a monopoly, more than 50% of the market must be controlled. Here, the court found that the market was not merely the United States, as claimed by Genetic, but Canada as well as other countries. Therefore, the fact that Abbott had 55% of the American market did not give it a monopoly over the international market. Therefore, the court could not find that Genetic would succeed in proving at trial that a monopoly had been created.; In addition, irreparable harm is that harm which cannot be compensated by monetary damages. Here, Genetic's damages were calculable and financial. The court discounted Genetic's claim of damage to reputation. As Genetic did not make the requisite showing to support its demand for an injunction, the request was denied.

[56] In the Matter of Southern Biotech, Inc., 37 B.R. 311 (Bankr. M.D. Fla. 1983).: FACTS: Southern Biotech is a corporation that collects blood components for the purpose of providing it to manufacturers of a variety of products including Factor VIII. Southern Biotech had contracts with two Florida prisons to operate plasmapheresis laboratories in the prisons. That contract required, among other things, that Southern Biotech operate the prison laboratories "in accordance with good and sound medical practice." Southern Biotech filed for bankruptcy and the trustee appointed to run the company sought to assume the contracts with the prisons in order to meet the debt owed the prisons. The Department of Corrections argued that the trustee should not be permitted to assume the executory contract with the prisons.; ISSUE: Whether the requirements of the bankruptcy law prohibit the trustee's assuming these contracts?; HOLDING: Assumption of the contracts was denied.; REASONING: The contract requirement that the prison blood laboratories be operated in "accordance with good and sound medical practice" precluded the trustee from assuring future performance as required. The court found that because there was no way of properly screening the prisoners' blood for HIV and because many prisoners were members of high risk groups who would not voluntarily remove themselves from the blood program, there was no way Southern Biotech could operate the program in accordance with "good and sound medical practice."

III. Epidemiologic Surveillance and Disease Control

A. Mandatory Reporting

[57] NY State Society of Surgeons, et al. v. Axelrod, Sup. Ct. Albany Co., New York, 1988.: FACTS: Physicians' associations sued the state health commissioner to require him to designate HIV a sexually transmissible disease and thereby put into effect the state's reporting and testing regulations for sexually transmissible diseases.; The defendant responded that such designations were within the discretion of the state board of health and therefore beyond the reach of the court unless the failure to so designate could be shown to be arbitrary and capricious.; ISSUE: Whether the commissioner's refusal to designate HIV to be a sexually transmissible disease was arbitrary or capricious?; HOLDING: The commissioner's refusal to designate HIV to be a sexually transmissible disease was neither arbitrary nor capricious.; REASONING: The court determined that the legislation empowering the commissioner to make such designations did not require that all diseases which are transmitted through sexual acts be designated as sexually transmissible diseases by the commissioner; that the commissioner's duties required him to make judgments about the best ways to protect the public health; and that the evidence supported his decision not to so designate the disease. The court also reviewed the recently enacted NY AIDS statute which was specifically at odds with the procedures that would come into play if HIV were declared a sexually transmissible disease. It therefore denied the relief requested by the plaintiffs.

[58] McNamee, Cummins et al. and California Physicians for a Logical AIDS Response v. Kizer, Sup. Ct., Los Angeles Co., California. SOURCE: LAMBDA (Complaint filed 10/16/88), AIDS Litigation Reporter (Announcement of withdrawal of suit).: FACTS: Physicians' associations sued the state health commissioner to require him to designate HIV a sexually transmissible disease and thereby put into effect the state's reporting and testing regulations for sexually transmissible diseases. The plaintiffs withdrew the suit.

B. Testing and Screening

1. Informed consent

[59] Guardianship of Anthony, 402 Mass. 723, 524 NE 1361 (1988).: FACTS: Anthony is a moderately retarded man who resides at a home for the retarded. Previously the probate court had appointed a "permanent limited guardian ... with authorization to assent to the use of anti-psychotic medication in accordance with a substituted judgment treatment plan approved by the Court." Subsequently, the department moved to amend Anthony's medical treatment plan in order to remove a venereal wart which had been discovered on Anthony's body and, on the same day, a judge "reappointed" counsel and a guardian ad litem for Anthony.; In the course of these proceedings, the court inquired whether Anthony or his sexual partner had been tested for HIV. They had not been. The court, on its own motion, declared it would exercise its "superintendent powers over the Department of Mental Health," and determined that Anthony as well as his sexual partner should be tested and that neither Anthony's (nor a guardian's) consent was required. The home protested on the ground that testing could be stigmatizing, results could be misleading, and that, as recommended by the Surgeon General, there was already a safe sex education program in operation at the home.; ISSUE: Whether the probate court had the power to order Anthony and his sexual partner to be tested?; HOLDING: The court did not have the power to order the tests.; REASONING: The appellate court found that while the Probate Court has broad powers to fashion equitable remedies in matters relating to the guardianship of mentally retarded persons, its authority over matters relating to that guardianship is limited to fashioning relief in the best interest of the person under its jurisdiction. The court's power is to be exercised with the welfare of the ward in mind. Here, the Court had jurisdiction over Anthony because of the guardianship relative to decisions concerning the administration of antipsychotic medication. The order here was not specifically aimed at the welfare of the ward. Rather, the court ordered the testing because of its perception that it was necessary to meet a threat to the health of the residents of the home. Thus, the order was not within the court's jurisdiction based on guardianship, and was therefore void.; The appellate court specifically did not reach the issue of whether, under other circumstances, a court might order involuntary testing of home residents.

[60] Zabusky v. MBW Advertising Network, Inc. Superior Ct., New York Co., New York. SOURCES: LAMBDA and New York Law Journal, 8/13/88, p.27, col. 4.: FACTS: Plaintiff is the former employee of defendant. Defendant told people that plaintiff "probably had AIDS." Plaintiff sues defendant for defamation. Defendant demands that plaintiff undergo an HIV test based on the principle that truth is a defense to defamation.; ISSUE: Whether plaintiff has put his medical condition in issue and therefore may be required to take the HIV test?; HOLDING: The court refused to order the test.; REASONING: The court reasoned that forcing the plaintiff to undergo a test at a time well after the defendant's statements would do nothing to prove whether or not he was HIV positive at the time of the statement was made. It therefore refused to order the test.

[61] Adams v. Basso, Superior Ct. N.J., App. Div.Docket No. A-5583- 86T5. SOURCE: ACLU Order (12/22/87) and Amicus Curiae Brief, ACLU.: FACTS: Plaintiff, a corrections officer, was accidentally pricked when he was trying to secure an inmate found in his cell with a needle. Two inmates allegedly had shared the needle. The officer, as a private citizen, sought a court order to force the inmates to submit to HIV antibody testing.; The plaintiff presented no evidence to show that either defendant was a probable carrier, that the needles had been shared, that the needle-stick constituted a significant exposure or that testing defendants' blood would have the reassuring effect plaintiff sought.; The trial court granted the plaintiff's request to have the inmates tested.; ISSUE: Whether the trial court was justified in ordering mandatory blood testing of the two inmates?; HOLDING: The court's order was improper.; REASONING: The court found insufficient evidence to support a belief that the defendant was a carrier, that the needle had been shared or that the needle-stick constituted a significant exposure. The appellate court determined that plaintiff's request for relief had been rendered moot by the passage of time. His most reliable recourse to determine whether he had contracted the disease was by testing his own blood for HIV antibodies.

[62] Doe v. Conly, M.D. and Geisinger Clinic, U.S.D.C.M.D. Pa. SOURCE: LAMBDA (Complaint filed March 1988).: FACTS: Plaintiff had gone to Dr. Conly for treatment of a skin rash which he alleges in no way resembled any disease or condition associated with AIDS. He also asked to be treated for diabetes. At no time did he request an HIV test. At no time did the physician request permission to draw blood for such a test or provide any indication that plaintiff might be at risk. At no time did the physician apprise plaintiff that the confidentiality of the results could not be guaranteed. Plaintiff alleges that had he been asked, he would not have permitted the testing. He tested positive. When informing the plaintiff of his test results, the physician did not provide any counselling. The plaintiff sues for invasion of privacy, battery, breach of contract, breach of duty to deal in good faith, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and supervisory negligence.

[63] Doe v. Dyer-Goode, M.D., Court of Common Pleas, Philadelphia Co., Pennsylvania. SOURCE: LAMBDA (Complaint filed March 1988).: FACTS: Plaintiff and his fiance went to defendant for the purpose of pre-marital blood testing. The only test required was for syphilis. Without obtaining plaintiff's consent, defendant allegedly had his blood tested for HIV. She called him and informed him that he had tested positive and provided no counselling. Subsequently, plaintiff tested negative. He sued for invasion of privacy (failure to obtain his consent to be tested), non-consensual testing (a statutory privilege), breach of contract (the doctor's testing went beyond the scope of their agreed to services), and negligence because of her failure to provide the plaintiff with counselling when she informed him of the test results.

[64] Doe v. Wills Eye Hospital and Wieland, M.D., Court of Common Pleas, Philadelphia Co., Pennsylvania. SOURCE: LAMBDA (Complaint filed March 1988).: FACTS: Defendant physician performed an HIV test on plaintiff without obtaining his informed consent. The physician informed the plaintiff of his positive test results without providing any counselling. Plaintiff sues for invasion of his right to privacy. He also sues the hospital for negligence arising out of their failure to establish adequate HIV testing protocols and supervisory guidelines.

[65] Doe v. Maccabees Mutual Life, District Ct., Harris Co., Texas, 190th Jud. Dist. 88-55795. Source: ACLU (Original petition filed 10/26/88).: FACTS: Doe, applying for insurance coverage, was told by the insurance agent that he must submit to a blood test. The agent assured Doe that the test was to determine if Doe had a history of hepatitis and would not determine whether he was positive for the HIV.; On 2/9/88, a technician employed by Equifax came to Doe's office to draw his blood. Doe balked at signing the consent form which allowed for HIV testing, until it was amended by the technician to exclude such testing. The technician told him that she would write "amended" on the form to limit the test to testing his liver, as requested, and Doe initialled the amendment.; Subsequently, the sample was sent to a laboratory where it was tested for HIV antibodies, the results were positive, and the laboratory released those results to the defendant. Defendant in turn, sent Doe a letter in March 1988 requesting a signed authorization to release 'important information that has come to light'. Doe complied, and the defendant informed Doe's physician that the blood sample drawn 2/9/88 had tested positive for HIV antibodies.; ISSUE I: Whether the Insurance Company (Maccabees) and the phlebotomist's employer (Equifax) breached oral agreements not to test Doe's blood for HIV antibodies?; ISSUE II: Whether the phlebotomist committed battery by drawing blood for a test the plaintiff specifically did not consent to?; ISSUE III: Whether Maccabees or Equifax was guilty of fraudulent misrepresentation, in inducing Doe to undergo the blood test by assuring him that there would be no test for HIV-antibodies?; ISSUE IV: Whether Maccabess or Equifax or the blood processing lab which informed Maccabees of the test result, were guilty of intentional infliction of emotional distress?

[66] Doe v. Shasta General Hospital, Shasta Co., Cal. Superior Ct. No.92336, CA. SOURCE: ACLU. (Complaint filed: 9/9/87).: FACTS: Doe was a medically indigent person seeking treatment for a hernia at the defendant institution. As part of the work-up prior to surgical repair of the hernia, Doe went to the blood lab at the hospital, on February 3, 1987, to have blood drawn. He noticed a lab form for 'AIDS ANTIBODY SCREENING'. When asked if he wanted the HIV test, Doe specifically declined. A few hours later, on the same day, a lab employee called asking Doe to return to give more blood. He did return, and specifically asked if this blood was for an HIV test, and, when assured it was not, he then allowed his blood to be taken.; On Feb. 20, 1987, without Doe's knowledge or consent his attending physician ordered the blood tested for HIV, and disclosed the results to hospital administrators, and then entered a note in Doe's patient chart that "administrator and medical director and president of the society" felt that the defendant institution was "not equipped with facilities to Rx AIDS [sic]".; On Feb. 25, 1987, Doe's physician convinced Doe that he would die if he had the operation at a local hospital, and should seek treatment in San Francisco. However, the physician refused to make a referral to anyone in San Francisco. Doe's subsequent calls to the hospital director seeking a referral were ignored. Finally Doe sought legal assistance and left a message to that effect, and on March 3, 1987, he received a call from a surgeon at the defendant hospital, who scheduled and performed a routine hernia repair on Doe.; ISSUE I: Whether disclosure of test results violated the state confidentiality statute?; ISSUE II: Whether testing blood without the written consent (and over express objections of the patient) violated state confidentiality statute?; ISSUE III: Whether the disclosures breached the Federal Constitutional and/or the California Constitutional rights to privacy?; ISSUE IV: Whether misdiagnosing Doe's HIV antibody status as "AIDS' constituted professional negligence?; ISSUE V: Whether the defendants' disclosure of the test results constituted intentional or negligent infliction of emotional distress?; ISSUE VI: Whether the defendants' refusal to treat or make a referral constituted professional negligence/abandonment?; ISSUE VII: Whether drawing blood without proper consent, constituted assault and/or battery?

[67] Doe v. Trident Cruise Services. SOURCE: ACLU (Complaint not yet filed).: FACTS: Plaintiff is a cruise ship waiter who was tested for HIV without his consent or knowledge during a routine physical. His employer was informed of the test results, also without plaintiff's consent or knowledge. Plaintiff was fired. He also received a letter from the testing doctor telling him to report his seropositive status to his employer.

[68] Doe v. Baptist Hospital and John Lamb, M.D., Chancery Ct., Davidson Co., Tennessee, 88-3459 - II. SOURCE: LAMBDA.: FACTS: Plaintiff slipped and fell and thought he had broken his leg. He was taken to the defendant's hospital when his leg was set by defendant Lamb. No medical history was taken and he was admitted to the hospital. Purportedly "routine blood tests" were done without his signing any consent form and without his being told that an HIV test was being done as well. After his discharge and still in pain from his leg, he returned to see defendant Lamb. Lamb told him that he had ordered the test and that it was positive. Lamb told plaintiff this when they were in an examining room with its door open. Their conversation was overheard in the waiting room.; ISSUE I: Whether the performance of the unconsented to HIV test constituted assault and battery?; ISSUE II: Whether the unconsented to HIV test constituted an invasion of privacy?; ISSUE III: Whether the manner in which Dr. Lamb apprised plaintiff of his test results constituted a breach of confidentiality.

2. Constitutional search and seizure

[69] Anonymous Fireman v. City of Willoughby, U.S.D.C.E.D. Ohio, AIDS Litigation Reporter 5/27/88 (Order).: FACTS: The City of Willoughby ordered that all firemen be tested for HIV. Plaintiff refused and sought an injunction barring the tests. He argued that the test violated his right to be free of unreasonable search and seizure.; ISSUE: Whether the test was an unreasonable search and seizure prohibited under the Fourth Amendment of the U.S. Constitution?; HOLDING: The federal court ordered a temporary injunction prohibiting further testing and ordering the return to the subject of any blood already drawn.; REASONING: Not available.

[69B] Dutch AIDS Patient Detained at United States Airport, Boston Globe, April 5, 1989 at 1, col. 2.: FACTS: Plaintiff, a Dutch visitor to America, who had been confirmed as HIV positive, was searched by customs officials at the St. Paul Airport in Minneapolis. The drug AZT was found in his luggage. Plaintiff was taken to a county prison, where he was detained. The Immigration and Naturalization Service contend that Plaintiff cannot enter the United States with an infectious and communicable disease. The plaintiff is seeking, from the Attorney General, a waiver that would allow his release and permit him to remain and visit in the United States. Federal law prohibits people with AIDS from visiting in this country without such a waiver.

3. Federal screening programs

[70] Local 1812, American Federation of Government Employees v. U.S. Department of State, et al., 662 F. Supp. 50 (D.D.C. 1987).: FACTS: Employees of the State Department sued the State Department to prohibit mandatory testing of employees as part of the required medical fitness program that was required for all employees seeking to qualify or who had qualified for service abroad.; ISSUE: Whether mandatory testing of employees for HIV was prohibited under the Federal Rehabilitation Act?; HOLDING: Such testing did not violate the Federal Rehabilitation Act.; REASONING: The court determined that for the testing program to be constitutionally valid and not violate the Federal Rehabilitation Act, the testing must be rationally related to the program's goal. Because HIV is not spread by casual contact, a screening program might appear not to be rationally related to its stated goal. Here, however, the purpose of the testing program was not to prevent contagion, but rather to ensure that employees of the foreign service were neither at risk of exposure to opportunistic infections in less developed countries nor endangering the public service because of the host country's perception of HIV and those infected with it.; Such testing and its consequential re-assignment was not prohibited under the Rehabilitation Act. That statute requires that the handicapped person be "otherwise qualified". The court held that HIV infected foreign service employees are not "otherwise qualified" for foreign service abroad.

[71] Batten, et. al. v. Lehm