The Wall Street Journal - 24 Aug 1992
Grace M. Kang, Staff Reporter of The Wall Street Journal

The appellate decisions, from the high courts of Minnesota and Florida, go against years of lower-court rulings that typically dismissed such cases because they were filed too long after the infection occurred. Because of the nature of the AIDS virus, which can incubate in the body for years without showing any symptoms, many cases aren't discovered until long after the transfusion. By then, the time limit that many states allow for suing health-care professionals has expired, trial judges have ruled.

But the supreme courts of Minnesota and Florida found that a longer statute of limitations should apply, rather than the stricter limits for health-care professionals. Although the courts' decisions only affect cases in their states, plaintiffs' attorneys hope the rulings mark a new trend as other appeals courts take up the issue.

Blood banks oppose the plaintiffs' efforts, arguing that they are entitled to the same statute of limitations that applies to hospitals. The blood banks also maintain that they have taken adequate measures to prevent the transmission of AIDS. Since 1985, blood banks have screened blood for the AIDS virus, and before that they claimed they were meeting medical standards at the time to protect blood recipients.

"We believe our policy with regard to screening for infectious disease prior to 1985 was in line with public health recommendations," said Elizabeth Hall, a spokeswoman for the American Red Cross, which operates blood banks across the country.

At least one hundred AIDS transfusion lawsuits have been dismissed for not meeting the statute of limitations, lawyers estimate. The attorneys say that the defeated plaintiffs rarely appeal the rulings because they lack the financial resources or are too ill to see their cases through on appeal.

Since 1981, the federal Centers for Disease Control has counted 4,658 people who have developed acquired immune deficiency syndrome after contracting HIV, the virus that causes the disease, from blood transfusions, blood components or tissue transplants. Determining how many have sued blood banks is impossible because many cases have been dismissed by trial judges, dropped by plaintiffs who couldn't pursue the cases, or settled, said Larry Gostin, a Harvard University School of Public Health professor who tracks AIDS litigation in the U.S. for a federal Department of Health and Human Services project.

Allowing a case to go to trial doesn't necessarily mean a plaintiff has a strong case. While going before a jury may put more pressure on defendants to settle, those cases that have proceeded to trial against blood banks haven't been very encouraging for plaintiffs, attorneys said, partly because of laws protecting blood suppliers. For instance, so-called blood shield statutes, which exist in nearly every state, bar breach-of-warranty or product-liability suits against blood banks, said Steven Choquette, a Denver lawyer representing a plaintiff in a case against a blood bank in Wisconsin. Instead, plaintiffs can sue blood banks only on grounds of negligence. Negligence cases are harder to win than product-liability cases because a plaintiff must prove that the blood bank failed to exercise reasonable care and caused the injury.

But the first hurdle many plaintiffs need to leap before they can address questions of negligence is whether the statute of limitations bars them from their day in court. In Minnesota, a federal appeals court asked the state's high court to decide the issue in the case of Patty Kaiser, who was infected with HIV through a blood transfusion in 1984. In 1988 she sued the blood banks, Memorial Blood Center of Minneapolis Inc. and the American Red Cross.

The Minnesota Supreme Court in July rejected the defense argument that the blood banks fell under the state's two-year statute of limitations for medical malpractice actions. "While blood banks do, in a sense, provide care for human beings, they do not share the obvious characteristics of being primarily in-patient, comprehensive health-care facilities," the court said. Instead, the court said the state's ordinary six-year statute of limitations applied. The American Red Cross and Memorial Blood Center have asked the state Supreme Court for a rehearing.

The Supreme Court of Florida made a similar determination in May for the estate of Anne Marie Silva, who received HIV-tainted blood from Southwest Florida Blood Bank Inc. in 1985. Ms. Silva brought her suit in 1989 and died in 1990. A lawyer for Southwest Florida Blood Bank declined to comment.

At the request of the Eleventh U.S. Circuit Court of Appeals in Atlanta, the Supreme Court of Georgia is now wrestling with the same question in the case of a woman who was infected by a blood transfusion in 1983. Another federal appeals court is hearing arguments on whether it should ask the Wisconsin Supreme Court to rule on the statute of limitations that applies in the case of Mr. Choquette's client, who was infected in 1983.

Prof. Gostin of Harvard said that as a matter of public policy, the recent trend in favor of plaintiffs on the statute of limitations issue is desirable. "I think when a person has contracted HIV through a blood transfusion, he is likely to feel embittered and want to find out whether there was any negligence involved," he said.

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