On appeal from the Superior Court, Appellate Division, whose opinion is reported at 244 N.J. Super. 281 (1990).
For Affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollack, O'Hern and Stein. For Reversal -- Justice Garibaldi. Pollock, J., concurring. Garibaldi, J., dissenting. Justice Pollack, concurring in result.
We granted defendants' motion for leave to appeal, N.J. (1991), to consider whether a patient who alleges that he received an HIV-positive blood transfusion may obtain limited discovery from the donor when the patient also alleges that a blood bank negligently supplied the blood. In holding in favor of such discovery, the Appellate Division relied on N.J.S.A. 26:5C-9, which permits disclosure for good cause of information regarding a person who has Acquired Immune Deficiency Syndrome (AIDS) or is infected with the Human Immunodeficiency Virus (HIV). 244 N.J. Super. 281, 582 A.2d 307 (1990). This Court now affirms on the opinion below. I concur with that
opinion and write separately to emphasize the Court's reliance on the statutory balance of the donor's privacy interest, the plaintiffs' interest in full discovery and compensation for the injuries they have sustained, and society's interest in a safe and adequate blood supply. Our reliance on N.J.S.A. 26:5C-9 is consistent with prior decisions of this Court and illustrates the proper roles of the legislature and the judiciary in cases involving law and bioethics.
Because this matter arises on an interlocutory appeal from a discovery order and cross-motions for summary judgment, the record, although voluminous, is less complete than it would be after a plenary hearing. From the record, the following facts appear. In August 1984 plaintiff William Snyder underwent open heart surgery at St. Joseph's Hospital in Paterson. In the course of the surgery, he received transfusions of several units of blood products, including one of platelets, unit 29F0784. Defendant Bergen Community Blood Center (BCBC) had collected blood for that unit at a bloodmobile in Hackensack. BCBC is a member of defendant American Association of Blood Banks (AABB), a non-profit association of non-profit banks, the members of which collect about one-half of the nation's blood supply. The American Red Cross collects the other half.
According to BCBC, it made available to donors an AIDS information sheet, captioned "AN IMPORTANT MESSAGE TO ALL BLOOD DONORS." The sheet described AIDS:
AIDS or Acquired Immune Deficiency Syndrome is a condition in which the body's normal defense mechanisms against certain diseases or conditions are reduced. As a result, patients often develop unusual infections such as Pneumocystis pneumonia or a rare form of skin cancer, Kaposi's sarcoma. There is no known cause, preventative measure, laboratory test, or treatment for AIDS.
It also identified those at risk:
It is known, however, that certain groups are at a high risk of contracting the disease. These include:
* those with symptoms and signs suggestive of AIDS;
* sexual partners of AIDS patients;
* sexually active homosexual or bisexual men with multiple partners;
* Haitian entrants to the United States;
* present or past abusers of intravenous drugs;
* patients with hemophilia; and
* sexual partners of individuals at increased risk of AIDS.
The sheet concluded with the request:
Your blood bank is asking that you voluntarily refrain from donating at this time if you are in any of the currently identified high-risk groups. Although the majority of members of these groups are not carriers, there is presently no means of detection and thus no mechanism to identify those few who may be at risk.
BCBC also asserts that it took a medical history from donors asking twenty-nine questions, including:
Are you in general good health?
Ever injected yourself with any drugs?
Signs of swollen glands or Kaposi's sarcoma?
The apparent purpose of these questions was to discover whether the donor was a member of the "identified high risk groups," which include intravenous drug users and sexually active homosexual and bisexual males. Concerning the last question, Kaposi's sarcoma is "a manifestation of a new immunodeficiency syndrome and since has been the initial manifestation of AIDS in approximately 30% of reported cases. AIDS-associated Kaposi's sarcoma has remained predominantly a disease of homosexual and bisexual men, although it has been reported among all high-risk groups." R. Gray & L. Goody, Attorney's Textbook of Medicine para. 46.51 at 46-48 (3d ed. 1988). According to BCBC, the donor gave negative responses to each of the questions.
The parties disagree on the effectiveness of then-existing tests to determine if blood products were infected with HIV, the cause of AIDS. They agree, however, that starting in 1985 the enzyme-linked immunoabsorbent assay screening test (the ELISA test) enabled blood banks to screen blood for the HIV
virus. Except for a two-to-six-month "window" following a person's exposure to the HIV virus, the ELISA test reveals whether a prospective donor has an HIV infection. As part of a nationwide "look back" program conducted by AABB, BCBC ascertained in 1986 that a donor who had contributed to unit 29F0784 was HIV positive. Under the program, when a prospective blood donor tested HIV positive, the blood bank conducted a review to determine whether the donor had made donations before the development of the ELISA test. BCBC informed St. Joseph's that one of the donors to unit 29F0784 had tested HIV positive. St. Joseph's notified Snyder's doctor, who in turn informed Snyder in 1987. Snyder, who was not otherwise at risk, tested HIV positive.
Alleging that the transfusion of platelets had infected him, Snyder and his wife, Roslyn, instituted this action in 1989 against BCBC, its director, St. Joseph's Hospital, and others. Plaintiffs allege in part that BCBC was negligent in its screening of donors. BCBC denies both that it was negligent and that unit 29F0784 was HIV infected, notwithstanding BCBC's discovery in 1986 that one of the contributors was HIV positive. Thus, both negligence and causation are at issue. As part of their pre-trial discovery, plaintiffs seek limited discovery of the donor on both issues. In particular, they want to discover whether in 1984 the donor was HIV infected and whether BCBC followed its own screening procedures. Plaintiffs do not seek the identity of the donor or of the donor's acquaintances, nor do they intend to sue the donor.
After deleting the donor's name and address, BCBC produced the donor's records, but it opposes further discovery. The Law Division found that the donor's interest in confidentiality outweighed plaintiffs' interest in obtaining the information. Finding also that "[t]here is no basis to conclude that [BCBC] did something wrong," the court denied plaintiffs' motion.
The Appellate Division granted plaintiffs' motion for interlocutory relief and reversed. Although it left it to the trial court
to determine the extent of discovery, the Appellate Division held that "some access [to the donor] under careful court supervision is appropriate and justifiable." 244 N.J. Super. at 296, 582 A.2d 307. Writing for a unanimous court, Judge Pressler suggested that either a "veiled" deposition or one conducted on written interrogatories might provide plaintiffs adequate discovery and also protect the donor's privacy interests. Id. at 297, 582 A.2d 307.
In the absence of legislative guidance, courts in other states have divided over the rights of an AIDS-infected blood recipient to make discovery of the donor. Some courts have denied access to the donor because of the donor's privacy interests, see Bradway v. American Nat'l Red Cross, 132 F.R.D. 78 (N.D.Ga.1990); society's interest in an adequate blood supply, see Coleman v. American Red Cross, 130 F.R.D. 360 (E.D.Mich.1990); Taylor v. West Penn Hosp. Central Blood Bank, 48 Pa.D. & C. 3d 178 (Common Pleas 1987); the physician-patient privilege, see Krygier v. Airweld, 137 Misc. 2d 306, 520 N.Y.S. 2d 475 (Sup.Ct.1987); or a combination of these factors, see Doe v. American Red Cross, 125 F.R.D. 646 (D.S.C.1989); Rasmussen v. South Fla. Blood Serv., 500 So. 2d 533 (Fla.1987); Laburre v. East Jefferson Gen. Hosp., 555 So. 2d 1381 (La.1990). Other courts, however, have found support for limited discovery of a donor in the public policy favoring compensation of injured parties, the plaintiff's correlative interest in full discovery, and society's interest in a safe blood supply. See Boutte v. Blood Sys., Inc., 127 F.R.D. 122 (W.D.La.1989); Mason v. Regional Medical Center of Hopkins County, 121 F.R.D. 300 (W.D.Ky.1988); Belle Bonfils Memorial Blood Center v. District Court, 763 P. 2d 1003 (Colo.1988); Stenger v. Lehigh Valley Hosp. Center, 386 Pa.Super. 574, 563 A.2d 531 (1989), appeal granted, 525 Pa. 618-20, 577 A.2d 890-91 (1990); Gulf Coast Regional Blood Center v. Houston, 745 S.W. 2d 557 (Tex.Ct.App.1988), Tarrant County Hosp. Dist. v. Hughes, 734 S.W. 2d 675 (Tex.Ct.App.1987),
Commentators also have divided on the issue. Some favor disclosure. They argue that discovery need not excessively threaten the donor's privacy interest, Turkington, Confidentiality Policy for HIV-Related Information: An Analytical Framework for Sorting Out Hard and Easy Cases, 34 Vill.L.Rev. 871 (1989); Note, Aids Related Litigation: The Competing Interests Surrounding Discovery of Blood Donors' Identity, 19 Ind.L.Rev. 561 (1986), and that limited disclosure of the donor's identity does not jeopardize the nation's blood supply, Jenner, Identifying HIV-infected Blood Donors, 25 Trial 47 (June 1989). Others oppose disclosure of the donor's identity. They contend that such disclosure will deter potential donors from giving blood, thereby reducing the blood supply. E.g., Note, AIDS: Anonymity In Donation Situations -- Where Public Benefit Meets Private Good, 69 B.U.L.Rev. 187 (1989). Still others argue that the donor's privacy interest, the physician-patient privilege, and the needs of the nation's blood supply weigh against discovery. Bollow & Lapp, Protecting the Confidentiality of Blood Donors' Identities in Aids Litigation, 37 Drake L.Rev. 343 (1987-88).
Unlike other courts, we have the benefit of legislative guidance. In the AIDS Assistance Act (the Act), N.J.S.A. 26:5C-1 to -14, the Legislature proclaimed: "The effective identification, diagnosis, care and treatment of persons who have contracted [AIDS], is of paramount public importance." N.J.S.A. 26:5C-2a. The Legislature recognized that "the outbreak of AIDS has reached alarming proportions because of its highly contagious nature with New Jersey ranking fourth in the nation of the number of reported cases." N.J.S.A. 26:5C-2g. Finally, the Legislature found that AIDS "may be spread through body secretions, especially blood and semen," N.J.S.A. 26:5c-2b, and "is now striking * * * persons who have received blood transfusions * * *," N.J.S.A. 26:5C-2d.
Like other cases involving law and bioethics, this case raises questions not only about competing legal and ethical interests, but also about the proper roles of courts and legislatures in considering those interests. In a morally pluralistic society, the legislature, consisting of the elected representatives of the people, is better suited than the judiciary to weigh the competing values. The legislative process is designed for gathering information from numerous sources relatively free from time constraints. By comparison, courts are generally confined to the adverse interests of a limited number of parties in a solitary case. When the legislature fails to act, however, courts may be obliged to resolve disputes based on common-law or constitutional rights. Even after the legislature acts, courts may review legislation to determine if it infringes on constitutional rights or supplements common-law rights. In sum, matters involving law and bioethics require each branch of government to respect the responsibilities of the others.
Consistent with those precepts, this Court has tended to defer to the Legislature in bioethical issues. Even when recognizing a "right to die" based on constitutional law, In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976), or the common law, In re Jobes, 108 N.J. 394, 424, 529 A.2d 434 (1987); In re Peters, 108 N.J. 365, 385, 529 A.2d 419 (1987); In re Farrell, 108 N.J. 335, 341-42, 529 A.2d 404 (1987); In re Conroy, 98 N.J. 321, 344-45, 486 A.2d 1209 (1985), we have sought legislative guidance. Likewise, when considering the issue of surrogate parenthood, we have deferred to the balance of interests struck by the Legislature in statutes pertaining to custody and adoption. See In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988). Similarly, we have held that the admission of AIDS-infected children to public schools is controlled by administrative regulations promulgated by the Departments of Health and Education. Board of Educ. v. Cooperman, 105 N.J. 587, 523 A.2d 655 (1987). So, too, here the appropriate judicial response is to follow the Legislature's lead.
The Act provides in relevant part that a record maintained by a blood bank, "which contains identifying information about a person who has or is suspected of having AIDS or HIV infection is confidential and shall be disclosed only for the purposes of this act." N.J.S.A. 26:5C-7. Another section, N.J.S.A. 26:5C-9a, however, specifically authorizes disclosure pursuant to court order for good cause. In that section, the ...