607 NYS2d 546 | N.Y. Sup. Ct. | 1993
OPINION OF THE COURT
Tragically, Nicole Gilmore, an 11-year-old girl suffering from osteogenic sarcoma (bone cancer) was infected by the human immunodeficiency virus (HIV or AIDS virus) from one
The claims as set forth in the complaint and amplified by the bills and amended bills of particulars fall into the following categories:
1. Defendant Hospital, its agents and servants were negligent in failing to test its blood supply and screen donors to prevent transfusion of blood or blood products contaminated with HIV.
2. Defendants failed to inform plaintiff and/or her mother in 1983 of the risk of transmission of HIV as a result of blood transfusions.
3. Defendants failed to timely diagnose plaintiff’s HIV status in that they ignored abnormal hemoglobin, hematocrit, ratio and other levels.
4. Dr. Murphy failed to timely inform plaintiff and/or her mother that Nicole was HIV positive and/or administer treatment to her.
Plaintiff acknowledges that AIDS was not identified until April 1984 and no reliable tests for the presence of the virus were available until March of 1985. However, she contends that certain steps should have been taken to minimize the risk of infection. First, she claims "surrogate marker tests” or tests for markers in blood associated with a population at high-risk of infection with sexually transmitted diseases, were available and should have been used. Second, she claims that the Hospital should have followed the recommendation of the Center for Disease Control (CDC) issued in late January of 1983 and instituted more aggressive methods for screening high-risk donors. Third, plaintiff claims that Drs. Lane and Murphy should have warned her or her mother of the risks of blood transfusions and provided the alternatives of autologous (her own previously donated blood) or directed donation transfusions.
In support of her claims, plaintiff furnishes several affidavits
Movants contend that there were no reliable tests for the AIDS virus that could have been performed during 1983 inasmuch as the virus was not identified until 1984 and no FDA licensed tests were available to hospitals until March of 1985 and to blood banks until April of 1985. Defendant’s expert Dr. Jeffrey C. Laurence, Director of the Laboratory for AIDS Virus Research, Cornell University Medical College,
Dr. Laurence further claims that failure to inform plaintiff of the risks of transmission of HIV through blood transfusions or of the option of autologous or directed donation was not a departure inasmuch as it was not generally recognized by the medical community, the blood banking community or the Center for Disease Control that the AIDS virus was blood borne until 1984. Moreover, as a cancer patient, Ms. Gilmore was not a candidate for autologous transfusions and before 1985, directed donations had not been shown to decrease the risk of transmitting the AIDS virus.
Finally, Dr. Laurence disputes the allegations that defendants were negligent in not making the diagnosis earlier or in informing plaintiff or her mother that she was HIV positive sooner. He avers that the claimed signs and symptoms associated with HIV including abnormal CD4 and CD8 counts and low hematocrit, are the same as those associated with chemotherapy and are so nonspecific as to be "useless to diagnose infection with HIV.” With respect to the failure to timely diagnose and timely inform, there was no treatment available prior to 1989 when the first paper was published recommending prescription of AZT for asymptomatic patients. Nicole Gilmore received AZT as soon as she was eligible; and, as of June 15, 1993, the National Institute of Health considered AZT for asymptomatic HIV-infected patients, optional, as its benefits remain unverified. Dr. Laurence in his September 7, 1993 affidavit notes that Ms. Gilmore continues to be asymptomatic.
In a supplemental submission, defendant Hospital furnishes two pieces of documentary evidence indicating that limited procedures for screening out high-risk donors and testing blood were instituted in February 1983. The first is a memorandum dated February 22, 1983 issued by Dr. Klaus Mayer, Director of the Blood Bank and Hematology Department and Associate Chairman of the Department of Medicine at Memorial Hospital for Cancer and Allied Diseases, stating that the Hospital’s policy is not to exclude donors because they are gay, but to alert them to withhold blood donations if they believe that they may transmit an infectious disease. The memorandum also indicates that donor serum is tested for hepatitis and syphilis. The second document is minutes of a February 28, 1983 meeting of the Hospital Transfusion Committee showing that item 4 on the meeting agenda was a
What makes these issues so close is that so narrow a window period is involved. The state of scientific knowledge about AIDS at the precise time Nicole Gilmore received blood transfusions was still rudimentary. Although there was early evidence that blood transfusions were a source of AIDS, no virus or specific contaminant had been identified. The cases cited by the parties involve either earlier or later transfusion dates and are decided accordingly.
In Hoemke v New York Blood Ctr. (912 F2d 550 [2d Cir 1990]), the Second Circuit affirmed the granting of summary judgment to the New York Blood Center and to five physicians. Mrs. Hoemke received two units of blood in a transfusion at New York Hospital in November 1981 during kidney surgery. Her claim against the Blood Center involved failure to screen out gay male donors and failure to use the alanine aminotransferase (ALT) test (sometimes used to identify the hepatitis virus) to guard against blood borne diseases. The claims against her physician involving failure to advise her about autologous transfusions were dismissed on Statute of Limitations grounds. The latter claim was also ultimately dismissed against the hospital. The court found that the state of medical knowledge at the time concerning transmission of the AIDS virus as well as the standard of medical practice concerning autologous transfusions required dismissal of the claims against the hospital. The court also accepted the hospital’s claim that directed donations did not actually reduce the incidence of blood borne disease perceptibly. The court cautioned that even a short time after the Hoemke transfusion, the acceptable medical standard might well have been different.
Concerning Mrs. Hoemke’s claims against the Blood Center, the court found that in 1981, before AIDS had been discovered to be a blood borne disease, no standard of reasonable care could have required blood banks to screen out all gay male donors. In fact, such a practice could have been challenged as
Courts in New Jersey and New York found that by 1984, although HIV had not yet been identified, enough was known about the nature of transmission of AIDS through blood to preclude the automatic granting of summary judgment to blood banks.
Snyder v Mekhjian (244 NJ Super 281, 582 A2d 307 [1990], affd 125 NJ 328, 593 A2d 318 [1991]) involved an August 23, 1984 transfusion.
Based on a similar analysis of the available data, a New York court found that there were sufficient issues of fact to preclude summary judgment for the hospital blood in Doe v University Hosp. (148 Misc 2d 756 [Sup Ct, NY County 1990]). That case involved a January 1984 transfusion. The court there indicated that blood was identified as a source of infection by the end of 1982 and some hospitals instituted donor screening and surrogate testing in 1983.
The situation here is complicated by the fact that plaintiff received her first transfusion on March 6, 1983 and only six of the units transfused were obtained from Memorial Hospital’s blood bank; the remainder came from the New York Blood Center, run by the American Red Cross. Moreover, while the Hospital eschewed the most vigorous or aggressive donor screening policies in February of 1983, it appears that the Hospital instituted some donor screening at that time. Although surrogate marker testing is not recognized by Dr. Laurence, Dr. Kizer opines that it was useful to minimize risks and failure to perform such tests deviated from what should have been reasonable standards in the industry.
It is clear that despite the CDC’s recommendation that donor screening procedures and blood tests be instituted, it did not become standard practice to do so until late 1984 or early
The claims against the individual physicians and the Hospital concerning failure to warn about the risks of transfusions and/or to offer autologous or a direct donor alternative are without merit and are dismissed. Although plaintiff’s expert, Dr. Kizer, asserts that defendants were negligent in not informing the Gilmore family of the risks of and alternatives to transfusions from the general blood supply, such a claim is inapplicable to this case. As an 11 year old suffering from cancer and undergoing chemotherapy, Nicole Gilmore was not a candidate for autologous transfusion. This is particularly true since she ultimately needed 22 units over a six-month period. Additionally, directed donations were considered neither an accepted medical practice nor a preferable mode for reducing the risk of transmission of AIDS in 1983. Since plaintiff was a young child suffering from a life-threatening cancer, the surgery was presumably not elective and, therefore, no reasonable parent would have withheld consent to either the surgery or the blood transfusions.
The claims against Dr. Murphy for first failing to diagnose and then withholding information concerning Nicole Gilmore’s HIV infection are problematic. With respect to failure to diagnose, the court agrees that there was insufficient medical evidence of HIV infection prior to 1987 to warrant an earlier diagnosis. The alleged symptoms were nonspecific and in any event, there was no treatment available.
With respect to the failure to inform, it is clear that Dr. Murphy knew or should have known about Nicole Gilmore’s HIV status by 1987. A letter dated November 27, 1989 from
The knowledge would have been useful because once Ms. Gilmore was infected with the virus, it could have been transmitted to others. Fortunately, she did not engage in sexual relations or other high-risk behavior, and no family member has contracted the virus.
Ms. Gilmore was a college student at the time she became aware of her HIV status. She claims that the knowledge has made her depressed and forced her to drop out of school. She says that had she known earlier she would have planned accordingly. These two claims are inconsistent. It appears that the knowledge has been detrimental not beneficial to Ms. Gilmore. As soon as AZT became available for asymptomatic HIV-positive patients, Dr. Murphy informed the Gilmores and arranged for therapy to begin. In view of the absence of provable damages flowing from the failure to inform, that claim must also be dismissed.
Plaintiffs request further examination of Dr. Mayer concerning the recently proffered evidence of donor screening at Memorial Hospital starting in February 1983. In his earlier deposition, Dr. Mayer had stated that no tests for HIV were conducted in 1983. He was not specifically asked about donor screening. If counsel intends to have Dr. Mayer testify about anything more than is in the documents concerning donor screening, he must be made available for a brief examination on that subject. Otherwise it is not necessary to conduct a further deposition and the case shall proceed to trial.
Based on the foregoing, summary judgment is denied as to plaintiffs claim against the Hospital for negligence in not testing blood or screening donors and granted as to all other claims against the Hospital and individual physicians.
. Dr. Kizer was responsible for regulation of blood and tissue banks in California and oversaw and administered the State’s AIDS programs during his tenure with the California Department of Health. He was involved with developing and implementing State policies regarding HIV testing for blood and serum in California. He has written extensively about AIDS and blood.
. Dr. Gelles received a Ph.D. in economics in 1989 and states that he has conducted studies on the economics of various safety protocols to insure that blood donated for transfusions is free from the HIV virus. He is conducting a study concerning economic efficiency of court-ordered compensation in tort litigation resulting from transfusion acquired AIDS.
. Dr. Laurence is also editor-in-chief of The AIDS Reader, associate editor of The AIDS Research and Human Retroviruses, member of the editorial board of two other journals, publisher of 25 peer-reviewed articles on AIDS as well as numerous other articles on infectious diseases, holder of several United States patents relating to immunodeficiency and immunosuppression, and was a guest lecturer at the Pasteur Institute where he worked and published together with Dr. Luc Montaigne, discoverer of HIV.
. The affirmance relates to an interlocutory appeal of a discovery issue not pertinent to this case. All cites refer to the Appellate Division decision.
. On July 13, 1990, the Subcommittee on Oversight and Investigation of the United States House of Representatives Committee on Energy and Commerce conducted public hearings on the safety of the Nation’s blood supply. See, footnote in Snyder (supra, 244 NJ Super, at 290, 582 A2d, at
. See, Schilts, And the Band Played On, for a discussion of the blood industry’s and government’s reluctance to admit that blood was a source of the AIDS virus.