On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-11230- 95.
Before Judges Keefe, Eichen and Steinberg.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically March 29, 2001
No other parties participated in this appeal.
Plaintiffs' decedent died of cirrhosis of the liver on October 1, 1993. Plaintiffs contend that decedent acquired the condition as the result of receiving a blood transfusion tainted with the hepatitis B virus in 1983. Defendant North Jersey Blood Center (NJBC) denies that the decedent received tainted blood, and argues that even if it was tainted, the blood center employed the testing procedures utilized by most blood centers at the time the blood was donated and, therefore, it is not liable to plaintiffs.
Plaintiffs premised their wrongful death action against the blood bank on the theory that the blood bank was negligent in failing to employ the hepatitis core antibody test in 1983. Plaintiffs maintain that test was available and would have reduced the risk of failing to detect latent hepatitis B, as compared with the surface antigen test used by NJBC, which plaintiffs allege failed to detect the virus.*fn1 Accordingly, it was plaintiffs' burden to prove that NJBC was negligent in failing to use the core antibody test; that its negligence enhanced the risk that decedent would contract hepatitis B; and that the enhanced risk was a substantial factor in causing her injury. Snyder v. Mekhjian, 244 N.J. Super. 281, 293 (App. Div. 1990) (Snyder I), aff'd o.b., 125 N.J. 328 (1991).
This appeal basically addresses two issues: The first issue requires us to decide whether the court erred in denying plaintiffs' motion for further discovery of the blood donors, specifically, discovery of their identities for the purpose of retesting them for the presence of the virus. The second issue requires us to determine whether the judge erred in instructing the jury on the applicable standard of care with respect to NJBC's conduct in testing the blood used in decedent's transfusion for the hepatitis B surface antigen: a modified professional negligence (medical malpractice) standard or an ordinary due care negligence standard.
Prior to trial, a Law Division judge denied plaintiffs' discovery request. At the conclusion of the trial, a different Law Division judge rejected plaintiffs' request for an ordinary, "reasonable persons" negligence jury instruction and gave a modified medical malpractice charge on the standard of care applicable to the blood center. A jury found no negligence against NJBC and returned a verdict in its favor. This appeal then ensued. On appeal, plaintiffs contend that the trial court erred (1) in denying plaintiffs' motion seeking discovery of the donors' identities; (2) in giving a professional negligence charge rather than a standard negligence charge to the jury; and (3) in the wording of the verdict sheet with respect to the issue of proximate cause.
We summarize briefly the background evidence adduced at trial. In May 1983, following a diagnosis of cervical cancer, plaintiffs' decedent Ernestine Elkerson underwent a hysterectomy at the University of Medicine and Dentistry of New Jersey (UMDNJ). Several months later, in October 1983, UMDNJ diagnosed Ms. Elkerson as positive for infection with the hepatitis B virus. The decedent received treatment at UMDNJ for the condition for several years following her diagnosis. In 1990, the plaintiffs' decedent tested positive for the hepatitis B delta virus. On October 1, 1993, she died of cirrhosis of the liver.
Plaintiffs filed their complaint on September 18, 1995. Named as defendants in the action were New Jersey Blood Center (NJBC), UMDNJ, and the American Association of Blood Banks (AABB).*fn2 The amended complaint alleges that the decedent contracted hepatitis B with delta virus (hepatitis D) as a result of a blood transfusion administered to her during her admission to UMDNJ in 1983. During that admission, Ms. Elkerson received four units of packed red blood cells and frozen plasma, three of which UMDNJ obtained from NJBC.*fn3 Prior to distributing these units, NJBC tested the blood for hepatitis B with the surface antigen test and none of the blood tested positive for the virus.
We address first the discovery issue. During pre-trial discovery, plaintiffs received redacted donor cards, completed questionnaires and a checklist and physical examination notes from medical personnel at the blood center with respect to the blood donors. Based on that, plaintiff moved to compel defendant to disclose their identities and addresses.
On the motion to compel, plaintiffs argued that they wanted the discovery so that the court could contact the donors to determine if they would be willing to answer some additional questions and submit an additional blood sample.*fn4 This request was based on the theory that if these donors tested negative for the hepatitis virus now, they would have tested negative in 1983, thereby obviating the need for continuing the lawsuit.
Defendant NJBC countered that the plaintiffs had not established a sufficient need for the information in order to overcome the donors' privacy interests. NJBC also argued that the type of hepatitis that plaintiffs' decedent was diagnosed with, hepatitis B with a delta virus, would have been detected by the surface antigen test performed by the blood bank had it been present and, therefore, core antibody testing was unnecessary.*fn5
The trial court denied plaintiffs' motion, in part, because plaintiffs were not challenging the blood center's screening method as in Snyder I; plaintiffs failed to demonstrate a "particularized need"; and on balance, plaintiffs' right to obtain the identities of the donors did not justify such intrusion into the privacy of the donors.
Our courts have weighed the potential adverse effects to the blood collection system and the donors' privacy interests against a plaintiff's need for discovery so that victims of contaminated blood have an opportunity to recover in this type suit. See Snyder I, supra, 244 N.J. Super. 281; see also Snyder v. American Ass'n of Blood Banks, 282 N.J. Super. 23 (App. Div. 1995) (Snyder II), aff'd 144 N.J. 269 (1996); Doe v. Greater New York Blood Program, 304 N.J. Super. 287 (App. Div. 1997).
In balancing those interests in this case, we conclude that identifying the donors now for the purpose of re-testing them with the core antibody test does not justify overcoming the privacy interests of the donors or the blood bank industry's interest in protecting a continuing source of blood product. That is because testing for the virus now would not provide sufficient evidence to prove that tainted blood furnished by NJBC caused decedent's hepatitis, even giving plaintiffs the benefit of all favorable inferences.*fn6
We recognize that proving a causal relationship between the blood received by plaintiffs' decedent and her acquisition of hepatitis is an important element of plaintiffs' cause of action, an element on which plaintiffs have the burden of proof. However, eighteen years have passed since the decedent received the allegedly tainted transfusion. Given the time lapse, even if re- testing of the three NJBC blood donors produced positive reactions for the hepatitis B delta virus, there still is no way for any reasonable fact-finder to conclude that the donors were carriers of the virus back in 1983.*fn7
Dealing as we are then with less than a "possibility" that the donors were reactive for the virus in 1983, we must weigh the conflicting interests in favor of protecting the blood bank's need for a continuing source of blood supply and the donors' privacy interests against plaintiffs' need to know the donors' identities. As we said in Snyder I, the "confidentiality of blood bank ... records rests upon significant public and private considerations and is ordinarily essential to assure the continued effectiveness of the screening process, the willingness of donors to continue to participate in blood collection efforts, and the general ...