The Wall Street Journal - Wednesday, 23 October 1996.
Peter Mitchell, Staff Reporter of The Wall Street Journal

Taking aim at one of the state's more controversial statutes, the Damianos are asking the court to excuse people with AIDS from Florida's strict four-year limit on filing medical-malpractice claims. Because the AIDS virus can go undetected for many years, the Damianos argue, the time limit effectively denies them what they say is their constitutional right to sue for redress of injuries.

"Your rights expire before you even know you have a reason to bring suit," says Richard Sherman, one of the family's attorneys.

If the high court agrees, the Damiano case could poke a hole in a key line of defense against AIDS-related medical cases and weaken a law Florida doctors have guarded for years.

"This would be setting a new precedent," says Richard Bagby, a Winter Park doctor who is president of the Florida Medical Association, the Tallahassee-based doctors lobby. "It would . . . erode the statute."

The Florida Academy of Trial Lawyers has fought the time limit since 1988 -- with little success. This year, though, the group was able to extend protection from any expiration for children until age eight. The bill passed the state Legislature, despite strong opposition from doctors and insurers.

Even so, the Damianos face an uphill battle. Florida's courts have upheld the time limit in the past, even in cases in which the plaintiff didn't know the cause -- bungled surgery, for example -- until it was too late to sue.

In striking down past challenges to the statute, the state high court has defended time limits as a tool to control rising insurance rates. By creating the statute, a court majority ruled in a 1992 case, "the Legislature attempted to balance the rights of the injured persons against the exposure of health-care providers to liability for endless periods of time."

But a high-court decision in the Damiano case would mark the first time the state panel has examined the time limit in light of the spread of AIDS. Some lawyers say the disease's long incubation period is a special circumstance warranting an extension of the time limit.

The state's medical-malpractice statute allows suits four years from the date a procedure is performed, about 1 1/2 years less than the average for the 28 other states that have similar limits. (Twelve states have limits equal to or less than Florida's.) Though about 2% of Florida's 57,000 AIDS cases have stemmed from blood transfusions, doctors are rarely sued, principally because the time limit has often expired and due to the difficulty of proving negligence.

Additionally, victims have little hope of restitution. In several areas -- including South Florida -- suing a blood bank is all but futile. Many blood banks in areas with large AIDS populations, including the target of the Damianos' lawsuit, can no longer get insurance because of the high number of claims.

"There's nothing here they can get from us unless they want a blood bank," says Charles Rouault, president of Community Blood Centers of South Florida Inc., the Fort Lauderdale blood bank the Damianos are suing in addition to the doctor.

Given the demand for better-insured targets, allowing exceptions to the medical malpractice time limit might open the gates for more cases against doctors, who are insured, says Mr. Sherman, the Damiano attorney.

A victory in the Damiano case could do just that. Mrs. Damiano, a payroll employee for the Broward County School Board, received a tainted unit of blood a day after giving birth to twins at Broward General Hospital in Fort Lauderdale in 1986. She also infected her husband, Alfred, 43, an air-conditioning mechanic, with the AIDS virus. But it wasn't until 1990, when she complained to doctors about persistent flulike symptoms, that Mrs. Damiano learned she was HIV-positive and had AIDS. She died in 1993 at age 35.

In 1992, six years after the transfusion, the Damianos and their three children sued the uninsured blood bank and Mrs. Damiano's obstetrician, Grover McDaniel. They charged that Dr. McDaniel negligently exposed Mrs. Damiano to the risk of AIDS by prescribing a blood transfusion that wasn't necessary. But the case against the doctor never made it before a jury because of the time limit.

Mr. Damiano, through his lawyer, declined to comment on the case. But Dr. McDaniel, now 70 years old and retired in Fort Lauderdale, says Mrs. Damiano's transfusion "absolutely was needed" to help her recover. He says most doctors were unaware at that time that a blood donor tested for HIV might give a false-negative result in the early stages of infection. He says that was the case with the blood Mrs. Damiano received.

While he sympathizes with the family, Dr. McDaniel says he opposes making exceptions to the limit on filing suits. "If you're going to keep medical-malpractice premiums to a reasonable level, you have to have some limits," he says.

It's a message Dr. McDaniel identifies with all too well, he adds. One of the reasons he retired: the $54,000 premium for his medical-malpractice insurance, a plan that only covered up to $750,000 in claims a year.

In the Damiano case, State Circuit Court Judge John Luzzo in Fort Lauderdale, who asked to hear arguments twice in the matter, reluctantly ruled that the statute of limitations applied. Judge Luzzo called the requirement to file a suit before any disease could be detected "unreasonable," but added that he had little choice, given district courts' past rulings.

The Fourth District Court of Appeals in Broward County upheld Judge Luzzo's decision. But even it added that upholding the statute "may be viewed as uniquely unfair" to the victims of diseases such as AIDS. So, the district court sent the case to the Supreme Court.

Mr. Sherman, the Damiano attorney, doubted he had much of a chance to win until the Florida Supreme Court recently asked for oral arguments, an invitation extended to only about a dozen noncriminal cases each quarter.

The high court's decision could have implications beyond medical-malpractice suits, lawyers say. It could also affect product-liability suits against blood banks and the makers of blood-clotting medications for hemophiliacs.

In those cases -- brought under a separate Florida statute on product liability -- many victims didn't file suits within four years of learning they had AIDS, as the law requires. That time threshold is more advantageous to plaintiffs, because the clock doesn't start ticking until the alleged offense is known.

Trial attorneys say a Damiano victory could clear the way for a successful challenge to the product-liability time limit.

"The medical-malpractice statute is pretty specific: It's four years no matter when you find out," says Bob Parks, a Miami trial lawyer handling a number of the hemophiliac cases. "If they loosen that up, then it seems it can be analogized pretty easy" to the product-liability suits.

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