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12/19/96 MARIETTA ADVINCULA v. UNITED BLOOD

December 19, 1996

MARIETTA ADVINCULA, APPELLEE,
v.
UNITED BLOOD SERVICES, APPELLANT.



The Honorable Justice Freeman delivered the opinion of the court. Justice Nickels, specially concurring. Justice Miller, dissenting. Justice Harrison, also dissenting.

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

This case primarily concerns the standard of care under section 3 of the Blood and Organ Transaction Liability Act (Blood Shield Act) (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 5101 et seq.), against which the conduct of a nonprofit blood bank charged with negligence in collecting whole blood contaminated with the human immunodeficiency virus (HIV) must be measured.

Plaintiff, Marietta Advincula, as the special administrator of the estate of her husband, Ronaldo Advincula, deceased, brought wrongful death (Ill. Rev. Stat. 1983, ch. 70, par. 1 et seq.), family expense (Ill. Rev. Stat. 1983, ch. 40, par. 1015), and survival actions (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 27-6) in the circuit court of Cook County against defendant, United Blood Services (UBS). UBS operates nonprofit blood banks which collect donated whole human blood and is an operating division of Blood Systems, Inc., a nonprofit Arizona corporation.

Following trial, the jury returned a verdict of $2.14 million in plaintiff's favor on all claims. UBS filed a post-trial motion for judgment notwithstanding the verdict or, alternatively, a new trial. The trial court denied the motion, and defendant appealed.

A sharply divided appellate panel affirmed, issuing three separate published opinions: the majority opinion delivered by Justice Scariano, a special concurrence by Justice DiVito, urging remand for retrial, and a dissent by Justice McCormick. 274 Ill. App. 3d 573, 654 N.E.2d 644, 211 Ill. Dec. 182. These published opinions addressed the appropriate standard of care under section 3 of the Act and proper application of the standard. A Supreme Court Rule 23 order (134 Ill. 2d R. 23) addressed remaining issues, e.g., proof of proximate cause, admissibility of expert opinion testimony and time-barring of the survival action.

Following the decision, the appellate court issued a certificate of importance pursuant to Supreme Court Rule 316 (134 Ill. 2d R. 316) and article VI, section 4(c), of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, § 4(c)). We assumed jurisdiction and granted the American National Red Cross, the American Association of Blood Banks (AABB), the American Blood Resources Association (ABRA) and Abbott Laboratories permission to file amicus curiae briefs in support of UBS. We granted similar permission to the Illinois Trial Lawyers Association and the Association of Trial Lawyers of America, which support plaintiff. 134 Ill. 2d R. 345. The thrust of the amici curiae support concerns the interpretation of section 3 with respect to standard of care.

Plaintiff initially moved unsuccessfully to dismiss the appeal, contesting jurisdiction. Plaintiff states that she incorporates that motion in her brief and requests its reconsideration. Such request in this form is not properly before the court. See Ill. Rev. Stat. 1983, ch. 110, par. 2-620; 134 Ill. 2d R. 361(a).

Plaintiff also filed motions to strike portions of ABRA's brief and the entirety of AABB's brief. Plaintiff's motions were taken with the case. We find that information in ABRA's brief that provides background to the Acquired Immune Deficiency Syndrome (AIDS) crisis essentially appears within the record on appeal and within the parties' briefs. Further, ABRA's views may be properly expressed in its brief despite that it is an association of blood plasma collecting organizations. We also find that AABB's brief, describing the development of its association's standards and recommendations, does not improperly expand the factual record developed in the trial court as contended by plaintiff. See DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 76, 167 Ill. Dec. 1009, 588 N.E.2d 1139 (1992). Plaintiff's motions to strike are accordingly denied.

Defendant requests that this court reverse the trial court's judgment or, alternatively, remand for a new trial. After careful consideration, we reverse the judgments of the appellate and circuit courts and remand for a new trial.

BACKGROUND

UBS operates 20 blood centers in 19 states, including a center in Chicago. UBS conducts mobile blood drives, collecting whole human blood from volunteer donors at churches, schools, and places of employment throughout the Chicago metropolitan area. UBS belongs to that sector of the blood banking community which receives donations from volunteers as opposed to the commercial sector which depends on paid donors.

UBS is a member of the AABB, an association of blood banks and blood banking professionals engaged in the collection of whole blood from volunteer donors. AABB promulgates, establishes and publishes standards and policies for the collection, processing and distribution of blood, blood components and tissue by its members. AABB also inspects and accredits its members based on compliance with these standards and policies and issues advisory recommendations and guidelines. Federal and state governments generally accept AABB standards as authoritative.

Blood banks in general are regulated, inspected and licensed by the FDA. (21 U.S.C. §§ 321(g)(1)(B), 360(b) (1994); 42 U.S.C. §§ 262(c), (d) (1994)). The Code of Federal Regulations also requires that the suitability of a blood donor shall be determined by or under the supervision of a qualified physician. See 21 C.F.R. § 640.3(a) (1995). Illinois treats blood banking similarly. See 210 ILCS 25/2-125 (West 1994) (medical director of blood bank administers its technical and scientific operations); 210 ILCS 25/7-108 (West 1994) (blood bank may collect only with consent of donor and under direction or delegated direction of medical director). Transfusion medicine is a recognized medical specialty with specific board certification.

The initial spread of AIDS, a disease of unknown cause and origin, presented detection challenges to the medical community and, particularly, the blood banking community. AIDS in the United States was first reported to the Centers for Disease Control (CDC) in 1981. See 30 Morbidity and Mortality Weekly Report 250-52, 305-08 (June 5, July 3, 1981). AIDS's first known victims were male homosexuals and intravenous drug abusers. See generally Kozup v. Georgetown University, 663 F. Supp. 1048 (D.D.C. 1987), aff'd in part & vacated in part, 851 F.2d 437 (D.C. Cir. 1988). By July 1982, after three hemophiliacs contracted AIDS, CDC hypothesized that the disease was possibly transmitted through blood products. 31 Morbidity and Mortality Weekly Report 365, 366 (July 16, 1982). At that time, no consensus was reached nor were recommendations developed regarding that possibility among the various concerned government public health organizations and the blood banking community. Comment, Allocating the Costs of Transfusion-AIDS: An Oregon Perspective, 73 Or. L. Rev. 1057, 1061 (1994); Kozup, 663 F. Supp. at 1051.

By January 1983, academics, physicians, government public health organizations and members of the blood banking community met as a workgroup to consider opportunities for preventing AIDS, posed by person-to-person contact and by blood. In the absence of a laboratory test that could detect the AIDS virus in blood, the workgroup addressed the public health imperative of balancing the risk of AIDS against the impact screening measures might have on the nation's blood supply.

In the area of AIDS transmission by blood, the workgroup considered the benefits and risks posed by several screening options. Educating volunteer donors to self-defer was considered generally effective because such persons were known to be altruistic. Directly questioning donors regarding their sexual preferences and habits was believed to carry the risk of offending and discouraging low-risk donors, while also possibly ineffectively screening dishonest or alienated at-risk donors, which could adversely result in a decreased national blood supply. Donations by friends and family to specific recipients was not recommended by blood banking physicians because such persons are often pressured and, under such circumstances, might be less likely to admit high-risk behavior. Finally, several laboratory tests, known as surrogate tests, were between 66% and 88% effective in ultimately identifying HIV-infected donors, but they also had a 5% false positive rate, resulting in the rejection of safe blood. The tests also increased the price of collection and distribution of blood products.

The workgroup reached no consensus regarding the best method to effectively exclude high-risk donors. At the time, there were 11 possible reported cases of AIDS related to transmission by blood and blood products. Kozup, 663 F. Supp. at 1051.

Shortly thereafter, major blood banking organizations and associations with assistance from the National Gay Task Force, the National Hemophilia Foundation and government public health representatives issued the first in a series of joint statements relating to the transmission of AIDS. Kozup, 663 F. Supp. at 1052. The statement recommended that blood screening include questioning donors to detect possible AIDS or exposure to persons with AIDS. 73 Or. L. Rev. at 1062-63.

The United States Public Health Service Committee, comprised of federal government public health organizations and the FDA, similarly recommended that blood banks screen by educating donors with information pamphlets describing high-risk groups so that potential at-risk donors might exclude themselves. 32 Morbidity and Mortality Weekly Report 101-04 (March 4, 1983). The FDA also individually recommended voluntary self-deferral by potential at-risk donors. The FDA recommended, as well, improved educational programs for blood bank personnel to enable them to better assist donors in recognizing AIDS symptoms.

UBS revised its procedures, taking the course generally recommended by these governmental agencies and blood banking community associations and organizations, which did not include directed donations, surrogate tests or direct questioning of potential donors regarding their sexual preferences and habits.

Conclusive proof that the AIDS virus was transmittable through blood was first published in January 1984. J. Curran, Acquired Immune Deficiency Syndrome (AIDS) Associated with Transfusions, 310 New Eng. J. Med. 69, 70 (1984); Kozup, 663 F. Supp. at 1052. In February 1984, with one exception, none of the volunteer blood banks in the United States, including those operated by government public health agencies, screened donated blood with a surrogate test for AIDS. One university blood bank experimentally screened using the T-cell ratio test. No volunteer blood bank in the United States used the hepatitis B core antibody surrogate test, the test urged by plaintiff here.

On February 11, 1984, UBS collected a unit of HIV-contaminated blood from a donor, anonymously referred to as "John Donor," at a volunteer blood drive held at a Catholic parish on Chicago's southwest side. Later that month, the blood was transfused to the deceased during open-heart bypass surgery at Illinois Masonic Medical Center. Plaintiff alleged that defendant negligently failed to screen the HIV-contaminated blood, resulting in the deceased's contraction of AIDS and his eventual death, some four years following the February 1984 transfusion.

Specifically, plaintiff alleged that UBS inadequately educated donors about high-risk behavior for AIDS exposure; did not conduct the blood drive properly; did not directly question donors about their sexual preferences or sexual practices; and did not implement surrogate tests, before February 1984, although allegedly one test, the hepatitis B core antibody test, was proven effective in screening at-risk donors.

ISSUES

We are asked to decide whether: (1) the trial court properly construed section 3 and applied the proper standard of care; (2) plaintiff proved proximate cause; (3) plaintiff's expert witnesses' testimony exceeded their permissible scope; and (4) UBS was entitled to judgment due to the barring of plaintiff's Survival Act claim for failure to meet statute of limitations filing requirements.

STANDARD OF REVIEW

Statutory construction is a question of law, and a reviewing court will interpret a statute pursuant to its own judgment, independent of, and not deferential to, that of the trial court. See Arca v. Colonial Bank & Trust Co., 265 Ill. App. 3d 498, 202 Ill. Dec. 148, 637 N.E.2d 687 (1994); Mellon Bank, N.A. v. Midwest Bank & Trust Co., 265 Ill. App. 3d 859, 202 Ill. Dec. 772, 638 N.E.2d 640 (1993). Similarly, where facts are not disputed, a reviewing court may determine a question concerning limitations as a matter of law.

SECTION 3 OF BLOOD SHIELD ACT

In order that there may be negligence or actionable negligence, there must be a legal duty to exercise care in favor of the person injured, a breach of such duty, and injury proximately caused by that breach. See Curatola v. Village of Niles, 154 Ill. 2d 201, 181 Ill. Dec. 631, 608 N.E.2d 882 (1993). Section 3 of the Blood Shield Act, "Imposition of liability," imposes a legal duty upon blood banks and their staffs by stating:

" Every person, firm or corporation involved in the rendition of any of the services described in Section 2 warrants to the person, firm or corporation receiving the service and to the ultimate recipient that he has exercised due care and followed professional standards of care in providing the service according to the current state of the medical arts." (Emphasis added.) Ill. Rev. Stat. 1983, ch. 111 1/2, par. 5103.

ANALYSIS

I

Construction of Section 3-Standard of Care

UBS claims that the trial and appellate courts erroneously interpreted section 3 to allow UBS's conduct to be measured against an ordinary reasonableness negligence standard of care. UBS generally interprets section 3 as imposing an overriding obligation to adhere to "professional standards of care" and a secondary obligation to exercise "due care" in the conduct which conforms to those standards. UBS claims that where professional standards of care are duly adhered to, negligence liability does not arise.

Plaintiff, on the other hand, claims that the interpretation of section 3 adopted by the trial court and affirmed by the appellate majority is correct. That is, under the express terms of section 3, compliance with professional standards is not the sole inquiry; if professional "standards" or rules are themselves inadequate to constitute due care, then compliance with them does not satisfy the statutory standard of care. Plaintiff generally interprets section 3 as imposing an overriding obligation to exercise due care and a subordinate obligation to follow professional "standards," as in "rules."

Essentially, the controversy concerns whether section 3 of the Blood Shield Act contemplates a professional standard of care or an ordinary, reasonableness standard of care, and whether satisfaction of professional standards of care constitutes the lack of negligence. See Comments, Blood Bank Liability to Recipients of HIV Contaminated Blood, 18 U. Dayton L. Rev. 87, 98 nn. 100, 101 (1992).

Initial reference to the underlying procedural background of this case is helpful. Prior to trial, UBS moved for summary judgment. UBS argued, inter alia, that it had adhered to prevailing professional standards of care at the time of John Donor's blood donation. In opposing the motion, plaintiff relied on HIV-blood-transfusion decisions from other jurisdictions which rejected a professional negligence standard of care in favor of an ordinary negligence standard of care. See Doe v. American National Red Cross, 798 F. Supp. 301, 306 (E.D.N.C. 1992) (interpreting statutory provision stating, "in the selection of donors due care shall be exercised," to constitute ordinary negligence standard of care). The trial court found that section 3 expressed a due care "standard." The trial court denied UBS's motion, interpreting section 3 to require a blood bank to exercise due care and "fill [ sic ] professional standards."

The trial court also ruled prior to trial that evidence regarding the conduct of blood plasma centers that pay donors for blood was not admissible to show whether UBS's conduct was reasonable. However, over UBS's objections, some evidence was admitted pertaining to the conduct of blood plasma centers in order to show notice to UBS of alternative procedures and their feasibility.

On the eve of trial, plaintiff moved to confirm the applicable standard of care. In the motion, plaintiff requested that the court, in accord with its prior determination, "admit evidence and instruct the jury according to the appropriate legal standards." UBS, too, sought a statement of the applicable standard of care by a motion in limine. Once again, UBS argued that section 3 imposed a professional standard of care on blood banks. The trial court ruled that the standard of care applicable at trial to UBS's conduct would be that of a reasonably careful blood bank under similar circumstances.

At trial, over UBS's objection, Dr. E. Conant and Dr. Marcus Francis were allowed to testify as experts concerning the standard of care for blood banks in 1984. Dr. Conant was a dermatologist, who chaired the California Task Force on AIDS. At the time of trial, Dr. Conant had treated about 5,000 AIDS patients and had studied, written and presented extensively regarding AIDS transmission. Dr. Conant had no experience in blood banking medicine, except for a part-time job in medical school prior to the AIDS epidemic. Conant did not belong to any professional blood banking association and, on more than one occasion, had been prevented by courts from testifying because he was not an expert in blood banking. Dr. Francis was a epidemiologist and virologist formerly employed by the CDC. Dr. Francis had no experience in blood banking, nor did he belong to any professional blood banking organization. Initially, the trial court ruled that Dr. Francis could not testify concerning the standard of care, but dispensed with this limitation over UBS's objections. Dr. Francis testified, inter alia, about methods he believed were available to blood banks to prevent the spread of AIDS. Dr. Francis also testified that a blood donor would cooperate when directly questioned regarding sexual practices.

At the close of evidence, the court instructed the jury that UBS had a duty to use "due care for the safety of the plaintiff." The trial court defined "due care" as:

"the care that would be used by reasonably careful blood banks under circumstances similar to those shown by the evidence at and prior to the time Ronaldo Advincula contracted the HIV virus. The law does not say how reasonably careful blood banks would act under the circumstances. That is for you to decide."

Cf. Illinois Jury Pattern Instructions, Civil, No. 10.02 (3d ed. 1989) (hereinafter IPI Civil 3d).

The jury was additionally instructed:

"In determining whether the defendant exercised due care under the circumstances you may consider:

a. whether defendant complied with its own internal policies and procedures;

b. the knowledge and methods available at and prior to February 1984 to educate and screen donors and test blood;

c. the practices and procedures of the blood banking industry for screening donors and testing blood;

d. the government's recommendations and guidelines governing the collection and processing and distribution ...


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