San Francisco Chronicle; Monday, August 5, 1991
Reynolds Holding, Chronicle Staff Writer

But the trend has yet to hit California, where court rulings limiting pain-and-suffering awards and the questioning of HIV-infected blood donors make blood-transfusion cases even tougher to win.

"I can tell you that California has the most restrictive rulings of any state in this field," said attorney David Baum, who represents the plaintiffs in one of two cases that are to receive trial dates today in San Francisco Superior Court.

LATEST TEST

The cases will pose the latest test to the fast-changing law governing claims against suppliers of HIV-contaminated blood.

Baum's client claims she was infected with the virus that causes AIDS by a blood transfusion during the birth of her first son in 1982. She tested positive for the virus in 1985, and now her son is infected. Her second son died of the disease in 1986.

The woman, her husband and son sued Irwin Memorial Blood Bank -- the main blood supplier for 43 hospitals in San Francisco, Marin, Napa and Solano counties -- for negligence. Mount Zion Hospital and the San Francisco Medical Center are also defendants.

The other case involves a woman and her mother who received transfusions in 1984 with blood that allegedly came from a donor with venereal disease.

Baum and Victor Stefan, a San Jose lawyer representing plaintiffs in the second case, said they expect to win.

BEFORE MARCH 1985

But a problem with both cases is that they involve transfusions that occurred before March 2, 1985 -- when screening for HIV antibodies began to be routine.

"Juries still have to come to a conclusion that blood banks should have known what no one else in the world knew: that there was an HIV virus in the blood supply," said Duncan Barr, a lawyer for Irwin Memorial.

Until recently, few juries have reached that conclusion. As of 1990, only three of some 300 AIDS- related blood-transfusion suits in the country resulted in damage awards for plaintiffs, said Donald Hermann, a law professor and Health Policy Institute director at DePaul University in Chicago.

But plaintiffs are now finding it less difficult to recover for transfusions received before 1985, Hermann said. "They argue that negligent medical treatment made a transfusion unnecessary or that they weren't told of the risk of infection."

Plaintiffs have won about 12 suits in the last 18 months, he said. In Ohio, a blood-transfusion patient was awarded $12 million. In Arizona, a plaintiff with AIDS won $26.9 million from a blood bank.

But in California, where 745 people have an AIDS-related condition as a result of blood transfusions, plaintiffs have won only two of the 16 transfusion cases that have been tried so far in the state.

One reason is that some plaintiffs have been unable to find lawyers willing to take the complex and costly cases. Another problem involves a state Court of Appeal ruling in April prohibiting the identification of blood donors who have tested positive for the AIDS virus. Such identification is "very critical" because it reveal things about a blood bank's screening process, said Baum.

PROOF EXTREMELY DIFFICULT

Finally, proving California blood banks negligent in screening HIV-tainted blood before 1985 is extremely difficult.

"Because San Francisco and Los Angeles were on the cutting edge of the AIDS epidemic, blood banks in those areas were either doing everything they could do to an extent greater than anywhere else in the country, or they did nothing and made it look like they were doing something," said Stefan.

Californians who have received HIV-contaminated blood transfusions are not giving up and are continuing to file damage suits.

According to Judge Daniel Hanlon, who handles all pre-trial matters in AIDS-related transfusion cases filed in San Francisco Superior Court, 35 cases are pending against Irwin Memorial alone, with more expected as people infected with HIV years ago begin to develop AIDS.

Stefan and others say that, as plaintiffs file more lawsuits and their lawyers get better at choosing winning legal strategies, the odds for plaintiff victories will improve.
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