On appeal from Superior Court of New Jersey, Law Division, Essex County, L-12039-94.
Before Judges Baime, Carchman and Lintner.
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Arthur Troum was infected with the human immunodeficiency virus (HIV) when a tainted blood product was administered during cardiothoracic surgery. The virus subsequently ripened into acquired immunodeficiency syndrome (AIDS) resulting in Troum's death. Plaintiff Carol Troum brought survival and wrongful death actions contending that Dr. Luis Rivera committed medical malpractice by unnecessarily ordering the tainted blood transfusion. This appeal followed a jury verdict in plaintiff's favor.
The principal question presented is whether the statute of limitations expired. Defendant argues that plaintiff's survival action accrued when the deceased tested positive for HIV and was aware that his infection was attributable to the fault of another. Plaintiff contends HIV and AIDS are separate diseases and that the injury was the onset of AIDS, not the discovery of the presence of the HIV infection.
Because the medical evidence establishes that HIV and AIDS occur as a seamless progression of a single pathology, we reject plaintiff's argument that each condition is a separate and distinct illness triggering a new statute of limitations. We hold that the survival action accrued when plaintiff tested positive for HIV and knew that his infection was caused by another's negligence. We also conclude that the deceased was subjectively aware of the correlation between HIV and AIDS, and that the survival action was not saved by the discovery rule. And finally, we are satisfied that the wrongful death claim did not require the availability of an action for damages by the deceased at the time of his death, and was thus not barred by expiration of the limitations period.
I. FACTS PERTAINING TO LIABILITY
Arthur Troum was a physician. Following a heart attack, Troum terminated his private practice and commenced employment with the Veteran's Administration.
In 1984, Dr. Isaac Gielchinsky performed a quadruple coronary artery bypass on Troum at Beth Israel Hospital. At trial, no one involved in the procedure had any independent recollection of the operation. Medical records indicated that the bypass was performed flawlessly. At the conclusion of the procedure, Troum was injected with protamine, a drug designed to promote clotting. Gielchinsky testified that this was a routine technique, and that none of the medical records indicated that Troum was bleeding excessively either during or after the operation.
Troum was transferred to the coronary care unit in stable condition. It was customary practice for the surgeon, the attending resident, the anesthesiologist, the profusionist*fn1, and a nurse to remain with the patient for approximately one-half hour. The doctors would then return to the operating room, leaving the patient in the care of the resident in charge of the coronary care unit.
Dr. Rivera was the resident on call in the coronary care unit. He and two other residents had begun their cardiovascular surgery residencies only three weeks earlier. Barbara Corvino- Diaz was the registered nurse. Because of time constraints, she would not record the name of the doctor giving specific orders at the time the orders were issued. At the conclusion of her shift, Corvino-Diaz would identify the resident on call as the doctor who issued a particular order even though the order was actually issued by another physician.
The medical records indicated that Dr. Rivera ordered the administration of cryoprecipitate. It is undisputed that Troum was administered ten units of cryoprecipitate while in the coronary care unit shortly after completion of the bypass procedure. Cryoprecipitate is an extract of clotting factors from pooled blood. It is administered to promote clotting and stop excessive bleeding. Each unit of cryoprecipitate comes from a different donor. Thus, the risk of infection increases with the number of units of cryoprecipitate administered.
Although the parties devoted substantial effort in attempting to identify the physician who ordered the cryoprecipitate from the laboratory, that fact appears to be irrelevant. It is undisputed that the cryoprecipitate was ordered from the laboratory while the operation was ongoing. It is highly likely that Gielchinsky ordered the cryoprecipitate while performing the bypass as a precaution in the event it was needed later. Gielchinsky explained that it took between forty- five minutes and one and one-half hours for the laboratory to prepare the cryoprecipitate and deliver it to the patient. A surgeon would routinely order cryoprecipitate in order to assure its availability if the patient subsequently developed excessive bleeding.
The relevant questions were (1) whether the cryoprecipitate should have been administered to the patient, and (2) who actually ordered the blood transfusion. Plaintiff's expert, Dr. John Hutchinson, testified that administration of cryoprecipitate to Troum constituted a deviation from the accepted standard of care. At the time of the operation, the risk of HIV infection was just beginning to become known. However, it was common knowledge among physicians that the risk of administering cryoprecipitate included infecting the patient with hepatitis and other viruses and bacteria. Hutchinson explained that cryoprecipitate should be administered only to stem excessive bleeding and only after it is determined that the use of protamine has not had the desired effect of promoting clotting.
Based on the medical records, Hutchinson concluded that Troum's "drainage" during the first two hours after the surgery was moderate and was well within normal limits. Hutchinson did not alter his opinion when confronted with Corvino-Diaz's notes, which indicated that there was "increased bleeding" from the patient's chest tube.
Defendant's expert, Dr. Joseph Cohen, disagreed with Hutchinson's conclusion that administration of cryoprecipitate was "contraindicated." Cohen explained that at the time of the operation there was no medical consensus as to the use of blood products for post-operative fluid replacement. Nor were there any governing standards. Cohen testified that the medical records suggested Troum suffered from abnormal bleeding. Evidence of this possibility included the fact that the cryoprecipitate was ordered while the bypass procedure was being conducted, and the fact that a fibrinogen test, which is used to measure the clotting factor in blood, was ordered immediately following the surgery.
Defendant denied ordering the administration of cryoprecipitate. He explained that the cardiovascular surgery residency program at Beth Israel Hospital was closely supervised. The authority of the residents was narrowly circumscribed. Defendant testified that in his third week of training he would not have had the authority to order the administration of cryoprecipitate to a patient. Only the attending physician, the senior resident and the anesthesiologist would have such authority.
Defendant's testimony was corroborated by all the medical professionals associated with Troum's care. Gielchinsky testified that a resident with three weeks experience would not be permitted to order the administration of a blood product. Dr. Akrom Bhatti, the chief cardiovascular surgery resident at the time of Troum's surgery, found it "quite unlikely" that a junior resident could independently give a patient cryoprecipitate without consulting a supervising physician. Dr. Girya Surya, who commenced his cardiovascular surgery residency on the same day as defendant, testified that junior residents were instructed not to make any significant decision, such as giving transfusions, prescribing medications, or administering fluids, without consulting the chief resident or attending physician. Corvino- Diaz explained that she did not accept orders from junior residents.
Troum remained in the hospital for nine days. He returned to work three months after his discharge. In April 1987, it was learned that Troum's blood transfusion was tainted with the HIV virus. Troum was so informed and tested positive for HIV the same month. We will describe Troum's emerging knowledge concerning the ramifications of his infection in our recital of the facts pertaining to the statute of limitations. It suffices to note here that after a period in which he remained largely asymptomatic, Troum's health rapidly deteriorated.
Troum began treatment with Dr. Jerome Levine, a specialist in infectious diseases. Initially, Troum appeared stable with no signs or symptoms of AIDS. At trial, Levine explained that HIV was the infection and that AIDS was the manifestation of the disease. Thus, Levine did not consider it unusual that Troum was initially free of symptoms associated with AIDS. The doctor also testified that while drugs could delay to some extent the onset of AIDS, the medical profession was cognizant of the fact that HIV-infected patients would eventually suffer from AIDS and die.
Levine explained that the virus attacks the part of the human immunological system called lymphocytes, or specifically the T-4 or CD-4 cells. The virus replicates itself, thus destroying the body's capacity to maintain a normal cell count, approximately 1000. As of September 1988, Troum's count was 782, which Levine characterized as being within the lower limits of the normal range. However, by October 1990, Troum's cell count fell to 136 – what the medical community now considers "full- blown AIDS." Although Troum retired from his position with the Veterans Administration in July 1991, he continued to ...