On appeal from the Superior Court, Law Division, Bergen County.
Pressler, Baime and A.m. Stein. The opinion of the court was delivered by Pressler, P.J.A.D.
The fundamental issue raised by this action is whether liability attaches to anyone, and if so to whom and under what legal theory, when a surgical patient contracts Acquired Immune Deficiency Syndrome (AIDS) as a result of transfusion with contaminated blood supplied by a non-profit blood bank. We granted plaintiffs leave to appeal from the trial court's interlocutory order dismissing the strict liability counts against all defendants, and we now affirm that order. We also granted plaintiffs' motion for leave to appeal from the interlocutory order denying their motion for discovery from the blood bank of the infected donor's identity, medical records, and recollections of the screening process to which he was required to submit before his donation was accepted. We reverse the order denying discovery subject to the protective conditions hereafter described.
Plaintiff William Snyder, whose wife Roslyn sues per quod, underwent elective coronary artery by-pass surgery and an aortic valve replacement at St. Joseph's Hospital in Paterson on August 23, 1984. The surgery was performed by defendant Haroutune Mekhjian, assisted by defendants Youngick Lee and Wilmo Orejola. Some hours after the original surgery, a second
surgical procedure was performed to repair a bleeding artery. During this procedure plaintiff was infused with, among other blood products, a unit of platelets, identified as serial number 29F0784, which had been supplied to St. Joseph's by defendant Bergen Community Blood Center (BCBC), a nonprofit collector and distributor to hospitals of donated blood. Plaintiff's recuperation proceeded uneventfully, and he was discharged from the hospital several weeks later.
In April 1984 the HTLV-111 virus (HIV) was identified as the cause of AIDS. By March, 1985, tests were available which enabled the nation's blood banks to screen all donated blood for HIV antibodies. This screening process was attended by a nation-wide "Look Back" program by which the blood banks were able to determine whether a now-identifiable HIV-positive donor had given blood prior to March 1985 and, if so, to which hospital that donor's blood had been supplied. In October 1986, BCBC wrote to St. Joseph's to advise that unit number 29F0784, supplied by it to the hospital on August 23, 1984, had come from a donor now testing positive for HIV antibodies. The hospital, by review of its records, ascertained that plaintiff had received that unit, and in April, 1987, it so advised his physician, offering the hospital's resources should further testing of the patient and counselling services be required. According to the physician's note on the hospital's follow-up report, he determined that:
Recipient [plaintiff] now lives in Florida. Prior to my notifying him he was tested in response to the CDC [Center for Disease Control] recommendation that all recipients be tested. His tests were positive. His wife and two sons were subsequently tested and found to be negative. He is being counselled by a physician in Florida. The recipient has no risk factors.
Plaintiff instituted this action in February 1989 against the hospital, the physicians involved in his diagnosis and treatment, BCBC, and the American Association of Blood Banks (AABB). AABB is a national non-profit association of non-profit blood banks, whose members, of which BCBC is one, collect about half of the country's donated blood. The American Red Cross collects the other half. As we understand the record, AABB
collects and disseminates relevant scientific and administrative information to its thousands of members, prescribes standards for their operations, and speaks for them.
Plaintiff asserted a strict liability claim against all defendants, contending that at the time of his transfusion, laboratory tests as well as donor screening techniques were available which, had they been employed, would have screened out HIV-positive donors and rendered the supply of donated blood safe from AIDS contamination. AABB did not, however, recommend their use to its members, and BCBC did not use them. Plaintiff claims that since the blood he received from BCBC could have been made safe, all those in the chain of collection and distribution of the infected blood he did receive should be held strictly liable for providing him with a defective product.
Plaintiff also asserted negligence claims against all defendants. His claims against the physicians are based on the assertion of professional negligence in not advising him of the risk of receiving contaminated blood and of the option either to collect his own blood for transfusion prior to the surgery (autologous transfusion) or to arrange to have blood available from family members or other known donors (direct donor transfusion). He also claimed that it was the negligence of Dr. Mekhjian and his assistants in failing to repair the bleeding artery during the original surgery which caused the necessity for the second surgery and the consequent contaminated transfusion.
Plaintiff's negligence complaint against the BCBC and AABB was based on the state of scientific knowledge respecting AIDS, its diagnosis and transmission at the time of his transfusion. He alleged that these defendants greatly enhanced his risk of receiving contaminated blood by failing to prescribe and implement available risk-reducing procedures in the blood-collection process. He also asserted that BCBC negligently failed to follow such screening procedures as it did then have in place, inadequate as they may have been. He claimed that but for
that negligence, BCBC would have rejected the infected donor's blood. Plaintiff also asserted consumer fraud and punitive damages claims against these defendants based on their alleged knowing and irresponsible ...