*1 proposed in the form disapproving of contract reasons for may be unreasonable Assuming, arguendo, modifications. contract, explain refuse to disapproved after has attorney, an he receiving here, so, after having we note that done basis attorney plaintiffs’ attorney’s disapproval, letter of defendants’ viz., that position, stating plaintiffs’ responded with letter attorney’s since their by the contract were still bound defendants clause. approval properly did suffice to invoke notice written attorney turn, letter from their responded, with a Defendants ap- the terms that he did not feel under which stated disapproval, for his give he the reasons proval clause was at- willing plaintiffs or their do so if either that he wоuld be but attorney nor their torney explanation. plaintiffs Neither desired so. attorney’s offer to do accepted defendants’ ever that defen- Accordingly, nothing in the record indicates since explain disapproval for his attorney basis dants’ refused otherwise, argument fails. contract, suggests plaintiffs’ here judg- affirm Consequently, for aforementioned reasons we ment of trial court.
Affirmed. JJ., McCORMICK,
DiVITO and concur. VINCULA, Special MARIETTA AD and as Adm’r of the Estate of Ro Indiv. Advincula, Deceased, Plaintiff-Appellee, naldo v. BLOOD SER UNITED
VICES, Defendant-Appellant. Division) (2nd First District No. 1 — 94—3168 22, 1995. Opinion August filed *2 DiVITO, J., concurring. specially
McCORMICK,J., dissenting. (Jerold Block, Chicago Solovy, Brody, Jeralyn Jenner & S. Michael T. Baran, Jeffrey Mayer, counsel), Roca, Phoenix, H. W. and Lewis & (Foster Robberson, counsel), appellant. Arizona Margаret Byrne Fors, Chicago, and Judith E. both of Holland & (Maureen Hart, Denver, Witt, Phelan, Colorado R. Elizabeth A. and Carlos Samour, counsel), appellee. A. opinion
PRESIDING JUSTICE SCARIANO delivered the court:
Marietta (plaintiff) brought against Advincula suit United Blood (UBS), bank, AIDS, Services a blood after her husband died of which through he supplied by contracted For the reasons set UBS. below, forth affirm judgment we of the circuit court entered on jury’s verdict in plaintiff.1 favor of operating UBS is an Systems, (BSD, division of Blood Inc. a not- for-profit corporation. such, As it collects blood from volunteer donors to, mobile blood alia, distributes it hospitals. drives inter area February
On plaintiff’s decedent Ronaldo Advincula (Ronaldo) open heart-bypass underwent surgery at Illinois Masonic Medical During Center. surgery, and after the he received five units transfusion, of blood via three of which provided by were UBS. diagnosed Ronaldo was acquired with immunodeficiency *3 (AIDS). syndrome He died from April 1988, AIDS-related illnesses in leaving wife, plaintiff, his daughters. and three
One of the provided by units blood UBS was donated "John during Donor”2 a UBS blood drive at St. Rene’s Catholic Church in City the Chicago in February dispute 1984. There is no that John Donor positive tested for HIV in 1986 and that his blood was the source of Ronaldo’s infection. human HIV refers to the immunodefi- virus, ciency a virus the T-cell leukemia family which causes AIDS. Schmidt, M.D., J.E. 2 Attorneys’ Dictionary of Medicine and Word (1995). Finder H-174
Plaintiff filed her suit in County the circuit court May of Cook on 26, 1989, and in her third complaint, amended April filed on page 1Because of opinions the limitation on ordered the cоurt, opinion section I of this published, II, HI, shall be while sections and (See IV unpublished shall be filed as an order. 166 Ill. 2d R. Justice special DiVito’s appear concurrence and Justice McCormick’s dissent will in published opinion. 2The throughout donor was referred proceedings to as "John Donor” protect in order anonymity. his alleged, alia, in negligent procuring inter that UBS she was distributing Recovery sought and John pursu- Donor’s blood.3 (740 (West 1992)), Wrongful ant Act ILCS to the Death 180/1 (West (755 1992)), family expense ILCS Survival Act and 5/27 —6 (West 1992)). law ILCS 65/15 trial, lengthy plaintiff a found in After favor damages. a total of million The trial court denied $2.14 awarded (n.o.v.) or, post-trial judgment motion non veredicto UBS’ for obstante alternative, appeal trial. This followed. new history epidemic The United States AIDS has been Services, (E.g., chronicled several authorities. United Blood (Colo. Divi- Quintana 509; Systems, sion Blood Inc. v. 827 P.2d see Politics, Randy Shilts, Band generally Played People, And the On: (1987).) Epidemic purposes opinion, For of this a brief the AIDS screening techniques at the summary of the blood available time Ro- provided. his is information is naldo received transfusion Historical provided only necessary explain methods of insofar as blood screening.
UBS, banks, regulated by like other the Federal Food blood (FDA). (See (1983) Drug Administration C.F.R. 640.4 for the § transfusions.) regulations in effect at time Ronaldo received by the subject set American Association of also standards (AABB), a grants Banks association which accreditation trade comply to blood banks that with its standards. The Council Com- (CCBC) association, but munity Blood Centers is also trade it does not standards banks to set forth for blood follow. disease; a fatal infection with HIV results total
AIDS is system. apparent became collapse of the immune diagnosed being spread through blood when AIDS was AIDS was recognized recipients. high hemophiliacs and blood transfusion men, groups sexually risk included active homosexual intravenous Haitians, users, partners recently drug arrived and sexual developed A direct test AIDS was groups. members of those by the Disease meeting until At a held Centers for Control 1985. (CDC) surrogate January suggested using testing, the CDC citing high disagreed approach, bankers with expense possibility supply would become and the surrogate tests detect 66% to 88% dangerously Although low. rate, positive donations, thеy had about a 5% false of AIDS-infected *4 resulting of some safe blood. thereby rejection testing evaluating product. In Surrogate indirect means of voluntarily were dismissed. 3Several other defendants AIDS, AIDS, prior context of to the existence of a direct test for testing symptoms individuals for commonly appear or conditions that way discovering with HIV-infection was one probable a donor’s infection early surrogate with HIV. As five tests were avail- able, including hepatitis B antibody Hepatitis core test. B afflicts many homosexual men drug and intravenous users.
Evidence in the surrogate testing record indicates that was used at least two early blood banks in the time at which Ronaldo However, received his banks, UBS, transfusion. including most blood surrogate did not utilize testing.
A screening second available method was that of dona- directed tions. Directed donations policy allowing patients refers to the family receive blood from or adopted friends. In policy BSI permitting directed donations communities where there was a demand for directed Chicago donations. UBS in adopt did not such a policy apprehension because of its family that or friends would feel pressured give high factors, blood and to hide risk such as homosexuality drug use.
Another available screening method was education and self- deferral of donors. This adopted by method was UBS and other blood Prospective banks. donors were educated as to high which were the groups risk encouraged AIDS and they not to donate if were within one groups. of those "Important An Notice” was developed for distribution at blood drives. It contained written high information on groups risk potential AIDS and informed ques- donors of code they tion which would prior be asked donating. question was: you "Are good today?” health If donors felt they that should not donate, they could negative answer in the any and avoid further potentially embarrassing questions. addition, donors were they informed if AIDS, yet were at compelled risk for felt donate, they could call back after donating confidentially request the blood bank discard their donations. Interviewers drives were instructed to interview donors in a setting confidential and to ask whether the donor understood the AIDS information.
Finally, direct questions confrontational regarding potential donors’ sexual drug orientation used, use could have been approach was not adopted by most blood banks. UBS and others felt that questions such would adversely not be effective affect the supply. framework,
Within a discussion of the first issue raised above, UBS follows. As noted remaining issues will be addressed in a contemporaneously filed Rule 23 order.
578
I interpreting argues trial court erred first that Act) (745 (Blood Liability Organ Liability Act and Transaction (West 1992)), requisite forth the standard which sets ILCS 40/3 ought of care contends that the standard care for blood banks. UBS the standards of duty take "due care to follow be as the to defined profession.”4 is that of negligence cases Ordinarily, the standard of care a jury is whether reasonable pеrson. The issue for the the reasonable cir differently under similar would have acted prudent person Medicine, Barber, Kelly Legal Issues cumstances. & Transfusion (hereinafter (1992) Legal Laboratory Medicine 821 Clinics in 14.10 Ottley, Illinois Tort Law Issues); generally M. Pollelle & B. § see (2d 1993). ed. assessed, the law
However, professionals is the conduct of when by developed accepted great extent to the standards defers to a compare the jury is asked to profession. particular profession of her that of the other members conduct with defendant’s 821.) involving Issues, litigation In community. (Legal in their transfusions, defendant through blood transmission AIDS assert- by a standard prefer judged to be banks they negligent if adhered does, they cannot be found ing, UBS that standard, Under this profession. and customs of to the standаrds showing it followed that its conduct can defend the blood bank recommendations, practices of and common AABB regulations, FDA Issues, at 822. Legal banks. other blood show a action, plaintiff negligence In a (1) part of the defen duty on the preponderance of the evidence (4) (3) cause; damages. (2) dant; duty; proximate a breach of that (Ward N.E.2d (1990), 136 Ill. 2d Corp. K mart v. 222, 232, (1990), Ill. 2d Co. 226; Lilly v. Eli & see Smith 291, 301, App. 3d 247 Ill. 324, 328; Johnson Carter v. N.E.2d obligation duty concept of embodies The 617 N.E.2d light in the conduct of reasonable legal standard conform do, is do, must not must defendant risk. What the apparent ” duty.’ satisfy the required to of conduct the standard question 33 Ill. Hospital Community Memorial v. Charleston Darling (3d Prosser, Torts, at 331 quoting W. 326, 331, 1964). ed. to warrant are held provides blood banks Liability Act that 4The Blood professional standards and followed they due care have "exercised 1992). (West ILCS care.” 745 40/3 Darling, supreme court held that custom was not duty case, hospital patients.
conclusive on the
owed
to its
In that
employed by
hospital placed
a doctor
the defendant
a cast on the
plaintiffs
leg.
leg eventually
gangrenous
broken
His
became
and had
amputated.
plaintiff alleged
to be
The
hospital
negligent
that the
permitting
perform
the doctor
orthopedic
services of the kind
required by
plaintiff,
failing
adequate
supervision
to exercise
through
staff,
over the case
requiring
its
and in not
af
consultation
complications
ter
developed.
plaintiff prevailed
The
at trial and on
court,
appeal.
supreme
In the
argued
the defendant
the trial
court should have defined the standard of care as the standard cus
tomarily
by hospitals
community.
offered
court
disagreed. The court noted
determining
"[c]ustom
relevant
feasible,
standard of care because it
suggests
illustrates what is
*6
body
knowledge
aware,
of which the defendant should be
and it
possibility
warns
far-reaching
of the
consequences
higher
if a
stan
required.”
dard is
It
explain, however,
went on to
not
custom is
dispositive of
duty
the issue of
profession may
because
entire
be
negligent.
Darling,
Ill. 2d at
The Darling oft-quoted passage court relied on the from (2d Hooper T.J. Cir. 60 F.2d in which Justice Learned Hand stated: are, doubt,
"There no cases gen where courts seem to make the practice cаlling eral proper diligence; the standard of we given currency have indeed some to the notion [Cita ourselves. Indeed, in prudence tions.] most cases reasonable is in fact com prudence; strictly measure; mon it is calling never its a whole may unduly lagged adoption have of new and available de tests, may persuasive vices. It never set its own however be its us ages. say Courts must in the required; end what is there are precautions imperative disregard so their even universal will (T.J. 740.) not excuse their Hooper, omission.” 60 F.2d at similarly We have professional malpractice case, found that in a *** "[p]roper practice standards any profession are not conclusively usage fixed local general or custom” and whilе the defendant’s adherence usage to custom or local is "indicative of (Chiero care,” it is not v. Chicago Osteopathic Hospital definitive. App. 74 Ill. 3d 392 N.E.2d Implying that usage standards as reflected custom and local can es tablish a presumption rebuttable of due we held that presumption by expert testimony could be refuted that the custom or usage negligence. Chiero, itself App. constituted 74 Ill. at 3d 209; N.E.2d at see also Lundahl v. Memorial As- Hospital Rockford 461, 465, (noting sociation 93 Ill. customary usual that the fact that a certain treatment does finding negligence). preclude a Liability Act reflects this common law understand
The Blood Darling and Chiero. The ing of the standard of care as stated alia, from li exempts, Act inter blood banks strict of blood a service and ability, deeming the collection and distribution 1992).) (745 (West recognizes the The law not a sale. ILCS 40/2 materials, knowledge, and skills from scientific benefits to be derived fostering public policy to using products blood and liability people of Illinois.5 The promote the health and welfare of the negligence cases of or willful misconduct. of blood banks is limited to (West 1992).) [they They are held to warrant "that ILCS 40/1 professional standards care have] exercised due care and followed according current state of the medical providing service (West 1992). added.) ILCS (Emphasis arts.” 40/3 bar, that it was defendant’s jury In the case at was instructed safety plaintiff,” and the court duty care for the to use "due defined due care reasonably cаreful blood banks that would be used
"the care by the similar to those shown evidence under circumstances contracted the HIV virus. prior to the time Ronaldo Advincula and say reasonably blood banks would careful The law does not how you That is for to decide.” act under the circumstances. defendant to consider whether The court went on to advise procedures, and the knowl- policies complied with its own internal and screen February 1984 to educate edge methods available banking industry, donors, of the blood practices procedures regulations guidelines. government and the relevant *7 legislative intent that the trial court violated Defendant claims strictly plaintiff. liable to effect, instructing jury to hold it by, in defined as both to a standаrd of care It contends that it was held by profes- care defined ordinary would use and the person due care Thus, it standards, standards conflicted. if those two sional even except statute New every a blood shield State had enacted 5As of deeming the rule collection Jersey, established where courts have (Legal a sale. rather than products service of blood and distribution Issues, 821.) However, liability of blood banks is limit on the reconsidering li strict endorses At least one commentator without its critics. they position to take banks, are in the best ability part, because for blood Cases: TheAids Eckert, D. precautions. Ross cost-effective Blood-Transfusion (1992). Liability, Analysis Legal Diego 203 A and Economic L. Rev. 29 San
581 existing argues, it would be held liable both if it failed to follow stan- professional professional standards and if its conduct exceeded required to exercise the responds dards. Plaintiff that defendant was reasonably prudent that a bank exercise if due care professional inadequate. standards were themselves meaning dispute,
To resolve this we must construe the of sec interpreting statute, tion 3. When the function of this court is to (Certain legislative ascertain and Taxpayers effectuate intent. v. Shea- 764.) (1970), 75, 84, hen Legislative 45 Ill. 2d intent and, should statutory language, be discerned from the where the language unambiguous, is certain and the court’s sole function is to enforce the reading exceptions, statute as enacted without into it conditions, clearly legisla or limitations which expressed conflict with (Harvey tive intent. City Harvey Firemen’s Association v. 75 153.) 358, 363, Ill. 2d statutory provision N.E.2d Each should given be meaning, possible; finding some reasonable if surplusage is disfavored. (Hirschfield v. Barrett 40 Ill. 2d Generally, N.E.2d conjunctive, use of the inas the Blood Liability Act, legislature indicates that intended for all of the (1A requirements listed Singer, to be met. N. Sutherland on Statu (5th 1991).) tory 21.14, Construction at 129 disjunctive § ed. While (such "or”) (such "and”) words conjunctive as words as are by sometimes legislators, misused meaning "[t]he literal of these terms should be followed unless it renders the inoperable statute meaning questionable.” becomes Singer, 1A N. Sutherland on (5th 1995). Statutory 21.14, Construction Supp. at 9 ed. § plain meaning requires of the Blood Act holding that blood banks are professional mandated both to follow care, standards and to due exercise indicated the use of the conjunctive statute; if sufficient standards are not to constitute blood banks are to take measures be yond those profession followed in order to meet the standard proposed statute, of care. Under UBS’ interpretation of the the entire industry effectively liability negligence could be from shielded if profession’s See, Lundahl, e.g., standards were insufficient. 674; Ill. 2d at generally Havighurst, 235 N.E.2d at see Altering Care, the Applicable Contemp. Standard &Law Probs. 1986) (Spring (advocating defining approach contractual standard of providers noting care health care owe consumers and custom standard "creates an almost irrebutta care”). presumption ble оf due conception
This meaning 3 is section buttressed legislative history limited relating available to us to the Blood Li *8 582 noted,
ability already Act. As deems the transfer of blood statute imposition and blood a service in order to foreclose the of derivatives dealing liability upon hospitals, physicians, strict and technicians (78th Assem., products. Proceedings, with blood Ill. Gen. House June (statements Lauer).) 1973, 13, By enacting Representative at 67 of 3, legislature responding section to a court case was hospital strictly held a liable for the sale of tainted blood to a which patient. (See (1970), 47 Cunningham Hospital v. MacNeal Memorial 443, 2d 266 At the time of the 1973 amendments Ill. N.E.2d statute, sold, blood, for whether donated or could not be tested receiving contract hеpatitis, patients and transfusions were risk of (See Assem., ing Proceedings, June the disease. 78th Ill. Gen. House (statements Juckett).) 13, 1973, at of There no Representative. 70 dealing legislature intended for entities in blood indication negligent products liability and to be immune from conduct. Assem., 13, 1973, Proceedings, Gen. House June at 67 See 78th Ill. ("this *** give Physicians and to protection [sic] does certain they acting good exercising faith and Hospitals in that are [sic] blood”) (statements Representative of due care in the transfer of Lauer). many jurisdictions held blood points Defendant out that have prevailing of banks in similar cases to a standard care defined See, profession. e.g., Spann v. Irwin Memorial Blood custom (1995), App. 34 Cal. Society, San Francisco Medicаl Inc. Centers (blood 360, 4th, 644, 653, profes- 364 bank held to a Rptr. 40 Cal. 2d practice); and Wilson v. sional standard of care as defined custom (1993), 1315, 1326-27, Bank 14 Cal. 4th Irwin Memorial Blood (1973), (same); Services Rptr. 524 Hutchins v. 18 Cal. Blood (same); 359, 364-65, Red 506 P.2d 452 Doe v. American 161 Mont. 435-36, 297 S.C. 377 S.E.2d Cross Blood Services 326 (same); Kelly, Liability The Blood see also Banks Manufactur- Blood: A Recipients Products to Clotting ers HIV-Infected Canada, States, the Law and Reaction in the United Comparison of Ireland, Australia, J. Marshall L. Rev. 472 Britain, Great Banks) (1994) (hereinafter (noting that it is Blood prove cases to plaintiffs in AIDS transfusion often difficult professional stan- duty jurisdictions utilize a breach of because most standard). person rather than the reasonable dard of care asserts, refused to However, jurisdictions have plaintiff othеr they deviate from liability where banks’ to instances limit blood (See, Mekhjian Snyder v. usage. e.g., professional custom or local (where HIV- 281, 292-93, A.2d Super. 244 N.J. 1984, summary judgment August transfused infected blood was precluded by regarding questions of fact the reasonableness of distributing collecting the defendant blood bank’s conduct in regardless using surrogate testing, it fol blood without whether matter); guidelines lowed on the Vuono v. New AABB York (in (D. Center, Supp. Inc. Mass. 696 F. case where *9 May in plaintiff contaminated albumin was administered septic herpes causing simplex, shock and the court noted that evi customs, community dence of while admissible and relevant actions, negligence "is not care a conclusive evidence because large persons may number of fail to exercise due care their usual (Fla. practices”); Bank, see also Silva v. Southwest Florida Inc. Blood (in 1992), involving 601 So. 2d a 1187-88 case transfusions of February holding HIV-infected blood 1984 and in that statute, exempted Florida’s blood shield which from li blood banks ability for defects that by could be detected or removed "a rea procedures sonable use of techniques,” bring scientific did not blood two-year period banks within the for limitations medical mal practice, four-year rather period than the for negligence).) addi tion, jurisdictions some adopted professional that have a standard expressly recognize care plaintiff may prevail nonetheless that a on a negligence by showing industry claim that the entire was negligent. Services, Systems, United a Division Blood Inc. v. (Colo. Quintana (although 827 P.2d 523-24 blood banks professional should be held to a plaintiff standard of could attempt on remand to that banking community’s show the blood unreasonably deficient);6 of care standard Brown v. United Blood n.5, 766-67, Services n.5, 109 Nev. P.2d (blood 396-97 industry-wide bank conformed standard care and therefore failing could not be held adopt liable three procedures detecting blood, plaintiff HIV-infected but the could deficient). attempted industry have to show that the standards were Requiring banks profes- blood to exercise due care and to follow sional potential liability standards does not result under an ordinary person standard, a professional standard and custom on reasonably prudent bank, because the focus is a as reflected provided by instructions the trial court in the instant case. As plaintiff out, director, points Simon, Dr. Ernest UBS’ medical testi- fied that FDA guidelines recommendations and AABB mini- were mum considerably standards and that UBS’ SOP "own more Quintana plaintiff prevailed appealed 6The on remand. The defendant again, adjudication prior appeal. case was settled to an on The Li Banks, ability Blood at 474-75. than, by as either one of those we have shown volume —than detailed step. documents can about two so that’s additional So that we talk establishment, and, a are com- three of staircase as licensed we levels recognized ap- layers.” mitted all three UBS itself may require taking beyond propriate precautions standard of care industry government organizations. those recommended distinguishable Darling from contend finds its situation judgments of ing procedures required its that since present case a "medical case.” UBS views personnel, medical only care applying to administrative decisions health Darling asserts, institutions; therefore, care applicable it standard of (in "similarly professionals should be defined what situated banks) case, support Ellig v. have done.” It finds other Ill. Community Hospital Delnor erroneously trial instructed Ellig, 1203. In we held court defining provided an instruction when i.e., ordinary negligence, what negligence hospital of a terms of This layperson done in similar circumstances. reasonable would have care to care explained "[t]he court standard of which health layperson held the same of care to which provider is is not standard *10 held, negligence grossly apparent so is unless the is obvious ordinary layperson appraise Ellig, it.” 237 Ill. could 1214. 603 N.E.2d at case, made in present trial avoided the error In the court to in ac required that UBS was act Ellig when it instructed have reasonably prudent a blood bank would cordance with how Thus, Ellig, in the trial court itself. contrast to conducted ordinary person, in due care not terms of instant case defined Pat rather, banks. See Illinois reasonably terms careful blood of (3d 1990). Instructions, Civil, ed. Jury No. 105.03.01 tern sum, adopted the correct standard we that the trial court hold Liability required Act. was to exercise Blood UBS of care under the standards; stan- professional professional if care and to follow to required requirement of due UBS dards did not meet the exceed those standards.
Affirmed. DiVITO, concurring: specially
JUSTICE my favored and reversal the extremes of affirmance Between two-step application of the colleagues, my preference is to remand for Nevertheless, need to resolve mindful of the approach outlined below. court, I of the case of certification the issue and I judgment I so believe opt to concur affirmance. do because analysis Liability applica- opinion’s that the of the Blood Act and its however, precedent separately, I tion of case law are defensible. write suggest that a care is in cases preferable to different standard of typе. this negligence a on a bank’s
We deal here with claim based blood properly properly failure to screen and to test donated blood donors notes, agent As blood banking the causative of the AIDS virus. UBS a recognized specialty, with its own board certifi- medical Moreover, professional organizations. acquiring, prepar- cation and ing safeguarding human use in medical blood for transfusion requires expertise by exercise medical and scientific health professionals during screening testing care both the donor and blood stages process. performed screening, all of its donor testing, banking and other blood activities under direction and supervision director, physician. Any negligence its medical who is performing оperations UBS in only by those reason occurred the action or inaction of employees functioning its officers and as professionals. health care Liability
The Blood Act states that blood banks warrant have professional providing "followed standards of care the service ac cording to the current state the medical arts.” ILCS 40/3 (West 1992).) Standing alone, language creates standard such (See as that (1978), malpractice found medical cases. Walski Tiesenga v. Indeed, 72 Ill. 2d no there is direct language in the statute anything which would indicate con trary. there argument is considerable merit UBS’ Liability subject Blood profes Act was intended blood banks to sional, medical standard of care.
Nevertheless, argument professionаl UBS’ standards must be the determining sole criterion for the standard of care under ultimately Act must fail. The Act states that addi standards, tion to blood banks also warrant have opinion notes, exercised "due As majority correctly care.” plain meaning language of this that blood banks are both to follow standards and to exercise due care. Further more, plaintiff points out, argument UBS’ that the standard of *11 care should consist of exclusively professional simply standards would render term superfluous, the "due care” principles violation of statutory (1991), (People Figures 398, construction. v. App. 216 Ill. 3d 401, 1089, 1092; (1991), v. App. Roser Anderson 222 Ill. 3d 1071, wording N.E.2d plain The of the statute govern here; must majority given the is that correct effect must be the term "due care.” here, reaching mаjority Darling relies on v. its conclusion Ill. Community 2d Hospital
Charleston Memorial Ed. N.E.2d cert. denied 383 U.S. 16 L. 2d S. There, hospital argued duty its Ct. 1204. the defendant that of care customarily hospitals was to be determined "the care offered community.” 2d generally 257.) (Darling, in its 33 Ill. at 211 N.E.2d at agreed that is relevant in determin The court custom care, ing the never be standard of but determined that should on the conclusive issue. holds, majority Darling, professional
The stan- applying that determining relevant, simply a dards are but serve as one factor majority liability general analysis. care blood bank’s under a due professional properly that jury thus concludes that concluded justified finding inadequate were and that the evidence a standards earlier, holding I lack care. indicated believe this As defensible. however, care” note, endeavoring incorporate
I "due that in language the Blood "professional and the standards” into care, majority profes that "if Act’s standard of states overall care, banks sional are not sufficient to constitute due standards profes required beyond those followed are take measures Ill. 3d at sion order to meet the standard care” requirement "if professional and that standards meet did (274 App. Ill. UBS was to exceed those standards” due 584). two-part a test: By language, majority suggests at this stan require professional an examination part the first would industry a adherence to banking and blood bank’s dards of the blood standards; require general due care part would those the second only industry standards were analysis and be reached if the would a rebut- meeting professional standards raises found deficient. satisfied; presumption due has presumption table care been standards were by showing that the could be rebutted deficient. test, it does suggests two-part
Although majority rationale and it Here, such a test it. was not informed of not mandate reason, I remand given guidance applying no it. For two-step standard. for retrial under the case strikes a approach preferable. It two-part I believe that protecting competing concerns balance between the better time, liable for and, they are held same ensures that banks up” the majority’s approach "swallows truly negligent behavior. The analysis. Thе care language general standards equal hand, accurately reflects test, more two-part on the other *12 footing phrases "professional of the two "due care” and standards of Liability two-part approach care” in the Blood Act. A similar found Services, jurisdictions. used in other United Blood Division of (Colo. 1992), Quintana 509, 523-24; Systems, Inc. v. 827 P.2d n.5, 766-67, Brown v. United Blood Services 109 Nev. n.5, 858 P.2d 396-97. McCORMICK,7 dissenting:
JUSTICE affirming Today, jury trial court’s on stan- the instructions the imposed by majority misapplies plain dard of care the section language implement apparent statute and fails to intent of Act, the Blood as stated in section 3. This results in stan- which, fear, Therefore, I professionals dard care few can meet. I respectfully dissent.
The undisputed evidence in this case showеd that UBS was administered medical personnel person- and that the same medical developed policies nel regarding its transfusion of blood and implemented the, response its to still new and little scourge of Only understood ADDS. in the prior months to the transfu- resulting sion in this begin lawsuit did health officials to suspect with any degree certainty supply pipeline nation’s blood was a (unknown agent HIV, for the causal of ADDS at the time to be which discovered). yet Indeed, to be January at the CDC’s 1983 meet- ing, at least participants two opinion voiced the that a blood-borne agent was not may the source AIDS. We today, with the aid of hindsight, opinions find such hopelessly Nonetheless, uninformed. now; this is Thus, that was then. if we are to assess blame on the banking entire industry, majority’s which is the basis opinion, ought CDC, responsible we also to hold the FDA and every organization agency other participated and in UBS’s fail- ure. trial court instructed that UBS was to providing
exercise due care its services. The trial court further reasonably defined due care as that prudent which a blood bank (1) exercise, considering compliance the blood bank’s with its (2) own policies internal and procedures; knowledge and methods (3) February available in donors; to educate and screen (4) practices procedures and banking industry; of the government regulations relevant guidelines. However, in accor- participated 7Justice appeal prior McCormick decision in this Illinois, Appellate District, August his retirement from Court of First on 1, 1995. warranted that it had "exercised due care dance with section UBS providing professional standards of care in the service followed according to the current state of the medical arts.” ILCS 40/3 (West 1992).) a blood bank followed standards Whether not, section, merely according as of care is to this be considered first care. It itself a standard of care. element instance, importance the instruction minimizes evaluating UBS’ conduct. standards Furthermore, defining requiring care” "exercised due steps beyond by professional standards if those take those dictated (circular "are care” reason- standards not sufficient constitute due *13 was), court, ing majority, if trial as as the failed ever there the well aspect phrase, is to on the most crucial of section which the focus according of medi- providing "in to the current state the service 1992).) (West phrase That modifies both cal arts.” ILCS 40/3 care.” due care” "followed standards of "exercised professional standards, it requirement is Like the that follow prong of as two of the instruction not mere element due implies. profess certainty legislature
I to what the not know with do legislative nearly regard history to is not intended with section 3. The Nonetheless, plain it. majority so conclusive as the would have to exercise due reading responsibility section 3 indicates that UBS’ of cast in terms of what professional practices care and to follow was reasonably 1984. This nec- accomplish was able to in medical science profes- essarily requires that defer to the standards courts (which comprised doc- community in of medical sional this case case, tors), court and the recognizes. In this the trial as section 3 care,” as of as well majority relegated "professional standards have of medi- according to the current state providing "in the service contrary to the arts,” This is to status of elements of care. cal permits second-guess the lay jurors to plain language of section 3 providing to a safe judgments of those dedicated supply. in legal community, for the arrogance
It strikes me sheer responding of professional judgment those hindsight, question to discuss, first early phases. to to the AIDS crisis its response to the AIDS instance, banking industry’s еarly the blood suggest the entire that to mere "custom” and to crisis as adherence of "unduly lagged adoption in the that industry negligent was it industry’s tugboat devices,” in the as was case new and available (2d (see Cir. Hooper The T.J. adopt radio receiver failure to in the places 737, 740), only disingenuous, but doctors 60 F.2d not Indeed, category gods, conquer able to discern and unknown. warning against solely Darling relying on court’s custom determine upon the standard of care assumes custom rely. early responses which health Our industries’ to AIDS were custom, desperation exponentially about but about face increasing morbidity coupled with a lack of reliable data. scientific upon just
We
should focus
this case
how little we knew of
early
today, relying
AIDS in
thе majority
expert
1984. What
sees
on
testimony
hindsight,
respon
aided
over a decade of
as reasonable
ses
supply
to the threat
the blood
were
so rea
time neither
instance, contrary
sonable nor apparent.
implication
For
the majority opinion, although by February
possibility
1984 the
surrogate
testing
suggested by
people
was discussed and
some
community,
the medical
was neither
nor
recommended
by any professional
regulatory
event,
agency.
any
association or
In
the majority
surrogate
testing
hepatitis
*14
(a)
see
exalting
testing
surrogate
having
panacea
been the
(b)
crisis,
supply
hindsight,
set the standard of
care to which the
banking industry
should
held
be
when no
regulatory
association
agency
saw fit
so deem it.
As
contеxt,
has stated
court
in a related
"medicine is not
profession
exact science. It
rather a
which involves the exercise
judgment
individual
proce
within the framework of established
dures.
in opinion
Differences
with
are consistent
the exercise
249, 261,
care.”
v. Tiesenga
Walski
72 Ill. 2d