The Times Mirror Company; Los Angeles Times - June 30, 1994, Thursday, Orange County Edition SECTION: METRO; PAGE: B-4
Leslie Berkman; Times Staff Writer

A U.S. District Court judge previously ruled that the boy's family had waited too long to sue. The lawsuit was filed in October, 1991, nearly eight years after the unidentified boy allegedly had received tainted blood during multiple transfusions at CHOC for a blood disorder.

Under state law, the trial court said, a medical malpractice lawsuit on behalf of a child must be filed within three years after he is injured, whether or not the harm, such as an HIV infection, is discovered by then.

By contrast, state law gives adults three years to file a malpractice suit after they know that they have suffered harm.

But the 9th Circuit Court of Appeals in Pasadena decided that it is unconstitutional for children to be treated differently.

"No one could have possibly intended that children have fewer rights," Circuit Judge Dorothy W. Nelson, who wrote the opinion for the three-judge panel, said in an interview Wednesday.

Nelson said the ruling, since it was based on the U.S. Constitution's assurance of "equal protection," should establish precedent in state courts, as well as federal courts that interpret California law.

The lawyer representing the American Red Cross in the case was not available for comment.

David Ettinger, representing Children's Hospital of Orange County, said his client agreed with the federal court's "equal protection" interpretation.

Ettinger added, however, that he does not believe the boy's lawyer has shown proof that the boy's immune system problems first became evident in August, 1988, when a blood test revealed he was infected with the human immunodeficiency virus. If symptoms were noticed earlier, he said, the case still may have been filed too late.

Martin Berman, the lawyer representing the boy, said the appellate court decision "means children have a better break now than they ever had before."

In 1989, a state appellate court, in deciding the case of Torres vs. the County of Los Angeles, also said that the more restrictive statute of limitation for children was unconstitutional.

But Berman said that "there were still some trial courts that were dismissing cases on the basis that the minors had not brought timely actions."

With Wednesday's federal appellate court decision, the boy's case was sent back to U.S. District Court. Berman said that through the discovery process he expects to learn more about how his client contracted HIV and whether there is strong enough evidence of negligence involving the screening of blood and blood donors to warrant going to trial.

The boy, who was 4 years old when he received the blood transfusions in December, 1983, is now living in the Midwest with his family, who moved from Orange County about a year ago.

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