The Wall Street Journal - 22 Apr 1992
Wade Lambert and Milo Geyelin, Staff Reporters of The Wall Street Journal

Rejecting the idea that only professionals could evaluate medical standards, the Colorado Supreme Court said it is up to a jury of lay people to decide whether the blood-bank industry's standards were reasonable in the years before a reliable blood test became available.

The decision reopens an issue that many in the medical field considered closed. Most courts across the country have ruled that blood banks were not liable for contaminated blood prior to April 1985, when the first test was approved to screen blood for HIV, the virus that causes AIDS. These courts have found that the blood banks had met the professional standards of the time and couldn't have been expected to do more.

But attorneys for transfusion recipients with HIV claim that blood banks should have taken additional steps to protect patients in 1983 and 1984. "It's unfortunate that the public has been led to believe that there was nothing that could be done before 1985," said Maureen Reidy Witt, an attorney for the patient in the Colorado case.

While not taking a stand on whether the industry's standards were adequate, the Colorado high court said that patients should be allowed to make their case to a jury. The court said that the jury should be allowed to hear expert testimony "establishing that the national blood banking community's standard of care was itself unreasonably deficient in not incorporating available safeguards designed to provide substantially more protection against the risk of infecting a transfusion recipient with AIDS."

In the Colorado case and others, plaintiffs' attorneys maintain that the blood-bank industry by early 1983 had received enough warnings about possible AIDS transmission to adopt stronger measures to weed out blood donors infected with HIV. For instance, the federal Centers for Disease Control in December 1982 said studies had raised "serious questions about the possible transmission of AIDS through blood and blood products." And in March 1983, the Food and Drug Administration recommended that donors should be asked specific questions about their health to determine whether they might have been exposed to AIDS.

Ms. Witt, who declined to discuss details of the Colorado case, said that, in general, blood banks should have examined donors for symptoms of HIV infection, such as swollen lymph glands, and questioned them confidentially about drug use and sexual behavior. AIDS is most commonly transmitted sexually and through intravenous drug use.

In court documents, the attorneys for the Colorado patient argued that the blood bank, United Blood Services, as well as others in the industry, didn't adopt the more aggressive questioning and physical examination that some studies called for. As a result, they allege, the patient was infected with HIV in a transfusion in May 1983.

The blood banks have maintained that they were doing everything reasonably expected to prevent the transmission of AIDS.

Arthur H. Downey, an attorney in Denver for United Blood Services, a division of Blood Systems Inc. of Scottsdale, Ariz., said that at the time, "All we knew was that there were certain high-risk groups who were believed to be more likely to be carrying the HIV virus . . . and we had asked questions about all of those things" to weed out donors in those groups.

In a friend-of-the-court brief in the Colorado case, the American Red Cross said that industry standards at the time were sufficient and shouldn't be addressed by a jury. The American Red Cross is a defendant in many blood-transfusion cases but not the one in Colorado.

"Virtually every blood-bank negligence case in the country has held that compliance with the standards used by other blood collectors constitutes due care," the American Red Cross said in the brief. It added that the trial court had been correct in rejecting the patient's "hindsight attack on the standards developed by the national blood service system in response to AIDS." The trial court dismissed many of the patient's allegations about industry standards. The patient appealed the decision.

But the state's high court said that meeting industrywide standards at the time wasn't necessarily enough to avoid negligence, "given the growing suspicion in the early months of 1983 that the AIDS virus might be transmitted through blood or blood components."

The court ruled, "A blood bank is liable in negligence . . . when it fails to make use of, or makes unreasonable use of, available and proven scientific safeguards."

(United Blood Services vs. Quintana, Supreme Court of Colorado, No. 91SC172)

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