An Idaho man may have waited too long to file suit against Holy Cross Hospital and the American Red Cross for a 1984 blood transfusion that left him with AIDS.
A federal judge dismissed the man's suit against Holy Cross last week, agreeing with the hospital that the suit was not filed within the two-year statute of limitations specified for Utah medical malpractice cases."He didn't file even close to that," said David Slagle, attorney for Holy Cross. The man, identified as John Doe in the suit, discovered he had AIDS in 1986 but did not file suit until a few months ago. He filed the suit in Salt Lake's U.S. District Court because the infection occurred here.
The dismissal comes at a time when AIDS litigation across the country is taking on a new life. Recent revelations suggesting the blood industry knew AIDS was transmitted through the blood years before the industry tried to develop a test for it or warn the public give some AIDS victims new hope that they can prove negligence against blood banks (see box.)
Some suits against the blood industry have already resulted in multimillion-dollar awards for the victims.
The Idaho man who received AIDS from a Holy Cross transfusion is one of 5,600 Americans who contracted the fatal disease through transfusion of tainted blood, according to February statistics from the Centers for Disease Control.
Court fights over who is to blame for the 5,600 tragedies has helped make AIDS "the most litigated disease in American jurisprudence," said Lawrence O. Gostin, a health law professor at the Harvard Law School. Gostin was quoted in an April 22 article in the National Law Journal that explores the impact newly discovered "smoking guns" may have on AIDS litigation.
Courts elsewhere may be awash in AIDS suits, but Utah courts don't appear to be. While no one has attempted to track Utah AIDS suits, Slagle speculates that only two or three have been filed.
And not all of those deal with blood transfusions. A Salt Lake man sued the West Valley City Police Department for announcing to his roommate and sister that the man had AIDS.
The police had arrested the man for a different matter. While searching him, they discovered a card identifying the man as an HIV carrier. The officers then told the man's roommate, sister and several people in a local mall that the man had AIDS, according to the suit.
Still, transfusions of tainted blood triggered the bulk of the suits, Gostin said. Victims in other states have sometimes won jury awards well into the millions of dollars. Victims have scored several wins against hospitals that transfused the blood and physicians who ordered the transfusions, the National Law Journal reported. But until now, victims seldom won against blood suppliers.
John Doe's case appears to be moving in the opposite direction. While U.S. District Judge Thomas Greene dropped Holy Cross as a defendant in the suit, he allowed the American Red Cross to remain.
The American Red Cross will ask to the court to drop Doe's claim against it as well, said Stephen Nebeker, American Red Cross attorney.
Robert Beck, Doe's attorney, doesn't think the organization will get that dismissal. Beck believes Utah's two-year statute of limitations for medical malpractice would not apply to the American Red Cross.
Doe received a transfusion of AIDS contaminated blood in the spring of 1984 during quadruple bypass surgery at Holy Cross. The surgery saved Doe from death by heart disease only to deliver him to up to the ravages of AIDS. Doe suffers symptoms characteristic of AIDS and will suffer loss of life expectancy, excruciating pain over a long period of time and extreme emotional stress, his suit charges.
Doe received his transfusion a year before the first test was developed to detect HIV antibodies, Slagle said. "There was no way to test blood for AIDS until a year after his surgery."
Attorneys for AIDS victims hope recent memos can refute that assumption. But law analysts are skeptical. Lawyers have tried repeatedly to prove that early on in the AIDS epidemic, the blood industry knew the disease could be transmitted by blood yet failed to prevent the use of contaminated blood or warn the public, the National Law Journal said.
The blood industry stands firm on the claim that, in the words of a blood industry attorney, "Sometimes there are misfortunes that are nobody's fault." Lawyers for the victims have had a hard time convincing the courts otherwise. "A lot of good lawyers got their brains beat out on these cases," said Robert Parks, a Florida lawyer representing three hemophiliac brothers infected with AIDS through transfusions.
Beck shares the hope of lawyers across the country that recent revelations will give victims a better shot at victory. After facing near death from heart disease and sure death from AIDS, victory would be a nice change for Doe.
Did blood banks delay warning?
Lawyers for AIDS victims have accused blood banks of not warning the public about the dangers of infected blood as soon as they themselves knew of the dangers and not working fast enough to develop an AIDS test. These are some of the recent revelations they rely on to support claims that blood banks knew AIDS was transmitted through the blood years before the 1985 implementation of mandatory AIDS tests for donors:
- A 1982 memo from the attorney of a pharmaceutical company suggesting that company include an AIDS warning in its literature.
- A 1982 Centers for Disease Control letter warning of the possible risk associated with a manufactured blood-clotting concentrate.
- A 1984 Red Cross AIDS Working Group memo saying that economic considerations could justify the use of a test not specific for AIDS but one that would catch a large number of infected donors.