HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/HOEMKE.ASC

Text File | 1993-01-14 | 16KB | 310 lines

/* This case is reported in 912 F.2d 550 (2nd Cir. 1990). In this
case the a blood transfusion in 1981 was contaminated with HIV.
One interesting point is that the case included an allegation
that the transfusion should never have been made. [This
allegation, if supported by the facts could bring many HIV blood
cases to trial that are now dismissed since pre-1985 cases
generally do not allow liability for using infected blood due to
the court's finding that testing was not available or unneeded.]
The court considers and rules that several means of possibly
preventing this infection such as autologous donation were not
known to be necessary in 1981. */

Andree Walton HOEMKE, Plaintiff-Appellant.

v.

NEW YORK BLOOD CENTER. New York Hospital-Cornell Medical Center.
John Rodman. John McGovern. Thomas McGovern. and John Coleman, De
fendants-Appellees.

United States Court of Appeals. Second Circuit.

Argued May 18, 1990.

Decided Aug. 24, 1990.

OAKES, Chief Judge:

This tragic case involves the contraction of the AIDS virus by
appellant Andree Walton Hoemke as a result of a blood transfusion
she received in November 1981 In Hoemke's negligence and
malpractice action against various defendants involved in the
transfusion, the United States District Court for the Southern
District of New York, Richard Owen, Judge, granted summary
judgment to the New York Blood Center and to the individual
physicians who had ordered the transfusion, and ordered a
directed verdict against plaintiff in her remaining claim against
New York Hospital-Cornell Medical Center. Judgment dismissing
Hoemke's complaint was entered by the district court on January
11, 1990.  We affirm on the particular facts of this case.

On November 12, 1981, Andree Hoemke was admitted to New York
Hospital suffering from a "staghorn" kidney stone. Five days
later, she was operated on to have the stone removed, and was
transfused during the course of the operation with two units of
donated blood supplied by the New York Blood Center. In 1987, she
was conclusively diagnosed as having AIDS, the cause of which,
not contested on appeal, was found by the district court to have
been the 1981 transfusion.

In December 1988, Hoemke filed this diversity action alleging
negligence on the part of the Blood Center, New York Hospital,
and the physicians who performed her 1981 kidney surgery. She
alleged that the Hospital's negligence arose from its failure to
have instituted procedures that would have allowed her to receive
an autologous transfusion (involving the patient's own blood
previously drawn) or a directed donation (involving blood drawn
from a named and known matching donor selected by the patient,
such as a relative), or to have educated its staff to avoid
transfusions in operations involving little blood loss.  Against
the Blood Center she alleged that failure to have screened out
gay male donors or to use the alanine aminotransferase ("ALT")
test to guard against blood-borne diseases constituted
negligence.  Finally, Hoemke claimed that the physicians who
operated on her had negligently and unnecessarily ordered a blood
transfusion, negligently failed to order an autologous or
directed blood transfusion, failed to warn her that a transfusion
might cause serious illness. and fraudulently  concealed  that
the  blood might have been tainted, once they learned several
years later that AIDS was a bloodborne disease.

After granting summary judgment to the physician defendants on
statute-of-limitations grounds and to the Blood Center on the
merits, the district court allowed Hoemke's negligence claims
against New York Hospital to proceed to trial. At the conclusion
of her case, however, the district court granted the Hospital's
motion for directed verdict, based on a finding that it had in no
way violated the relevant standard of care, since Hoemke had
failed to demonstrate that any other hospital had a program in
place in 1981 that would have prevented this tragic occurrence.
Hoemke appeals from the judgment on this directed verdict, as
well as from the previous grants of summary judgment in favor of
the Blood Center and physicians.



DISCUSSION

1.   Directed Verdict for New York Hospital

Hoemke's claim of negligence against the Hospital potentially
suffers from a fundamental and insurmountable defect: that AIDS
had been diagnosed as a distinct disease only shortly before her
operation was performed, and had not yet been known to be
transmitted by blood.  See Kozup v. Georgetown Univ., 663 F.Supp.
1048, 1051-52 (D.D.C.1987) (citing reports that very first AIDS
cases were diagnosed in June and July 1981 and that possibility
of AIDS being a blood-borne disease was not raised until at least
July 1982 and not fully accepted by the medical community until
1984), affd in part, vacated in part on other grounds, 851 F.2d
437 (D.C.Cir. 1988).

Hoemke bases her theory of negligence, however, not upon the
Hospital's failure to have guarded against AIDS in its blood
supply, but rather upon its failure to have instituted programs
that would have protected against transmission of those blood-
borne diseases. such as hepatitis. that were known in 1981.  She
claims that such procedures. which might have included programs
of autologous and directed transfusions and guidelines
discouraging Hospital staff from ordering blood transfusions when
less than two units of blood are lost, would have prevented her
from receiving blood infected with the AIDS virus as well.

[1-2]  Based on the evidence presented at trial and in the
record, we conclude that no reasonable jury could find for Hoemke
in her claims against the Hospital and therefore hold that the
district court, on the particular facts of this case, had no
choice other than to grant a directed verdict in favor of New
York Hospital.  It is well established that in assessing a
medical negligence  claim,  we  must  determine whether the
defendant acted in accordance with the state of medical knowledge
at the time, and must not make our determination with the benefit
of hindsight or knowledge of subsequent developments.  See Henry
c. Bronx Lebanon Medical Center, 53 A.D.2d 476, 48081, 385
N.Y.S.2d 772; 775 (1st Dep't 1976). Moreover, to find a hospital
negligent, we must conclude that it failed to meet a standard of
care defined in terms of the degree of care customarily exercised
by physicians or hospitals in the community.  See Pike v.
Honsinger, 155 N.Y. 201, 209-10, 49 N.E. 760, 762 (1898); Zellar
v. Tompkins Community Hosp., Inc., 124 A.D.2d 287, 289, 508
N.Y.S.2d 84, 86 (3d Dep't 1986).  Of course, if a given industry
lags behind in adopting procedures that reasonable prudence would
dictate be instituted, then we are free to hold a given defendant
to a higher standard of care than that adopted by the industry.
See The T.J. Hooper. 60 F.2d 737,740 (2d Cir.) (Learned Hand,
J.), cert. denied, 287 U.S. 662, 53 S.Ct. 220, 77 L.Ed.
571(1932); see also Texas & Pacific Ry. Co. v. Behyner, 189 U.S.
468, 470, 23 S.Ct. 622, 623, 47 L.Ed. 905 (1903); Tug Ocean
Prince. Inc. v. United States, 584 F.2d 1151, 1156-57 (2d
Cir.1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1499, 59 L.Ed.2d
772 (1979).

[3]  Given the state of medical knowledge and hospital practice
in 1981, as reflected in the record before us. New York Hospital
was surely not violating any industry practice by not having
instituted thermal procedures in 1981 for autologous or directed
blood transfusions or for training staff to avoid the use of
transfusions in specified circumstances. The testimony at trial
established that no other hospital had in place an extensive
program offering recipients of blood transfusions in non-cosmetic
surgeries the option of receiving blood from a source other than
anonymous donors or central blood banks  although hospitals
often  accommodated  patients' specific requests for directed
donations or autologous transfusions, they ordinarily did not
offer such alternatives absent specific request.  Hoemke moreover
failed to produce at trial any evidence indicating that other
hospitals had in place guidelines that would discourage staff
from ordering transfusions when only one or two units of blood
were involved.

Nor does the record reflect that the Hospital's failure to have
instituted such programs violated any higher standard of care we
might impose in lieu of industry practice.  At trial, Dr. Carl
Wolf, Director of the New York Hospital Blood Bank, cited a study
from the late 1970's to conclude that aside from the slight seven
to eight percent chance that a transfused patient might contract
a mild, nonfatal variation of hepatitis, blood transfusions were
widely considered in 1981 to be generally safe, low-risk propo
sitions, and certainly were not known to be potentially fatal
procedures. Based on the testimony presented at trial, we
conclude that the industry had no particular reason in 1981 to
institute expensive or administratively difficult procedures to
guard against what was considered at the time to be a relatively
minor hazard.

Specifically, as to plaintiffs claim that an autologous
transfusion should have been offered to her, we note that no
evidence contradicted the trial testimony of the performing
surgeon, Dr. John McGovern, that an autologous transfusion was
not a viable option for Hoemke because her blood had been
infected at the time she was admitted into the hospital. Even
Hoemke's own expert, Dr. J. Garrott Allen, conceded that patients
with bacterial infections should not have their blood drawn for
transfusion purposes, even if they themselves are to receive the
transfusions. Having failed to establish that reasonable prudence
dictated that she be provided an autologous transfusion, Hoemke
cannot claim that the Hospital acted negligently under either an
industry standard or the higher "reasonableness" standard.

Nor did New York Hospital's failure to have instituted a directed
donation policy constitute negligence.  As the Hospital
demonstrated in its submissions. the evidence as to the general
safety of directed donations is speculative at best. Although
knowing the source of the transfused blood may make a patient
feel more comfortable, no studies or expert testimony cited by
Hoemke indicated that directed donations actually reduce the
incidence of blood-borne disease.

[4]  Finally, Hoemke failed to establish that either the Hospital
or the industry as a whole acted negligently in failing to adopt
guidelines specifying that physicians and staff should avoid
ordering transfusions when less than one or two units of blood
are involved. In fact, Dr. Wolf's testimony suggested that such
guidelines would be imprudent; given the varied nature of
operations and of patients' responses to blood loss, the
testimony was that blanket policies discouraging transfusions in
defined circumstances would be medically inappropriate  and
perhaps  even  dangerous. Hoemke did not offer any testimony con
tradicting those conclusions, nor did she in any way demonstrate
that her transfusion had been unnecessary.  Given the strong
testimony of the physicians who conducted Hoemke's operation, we
decline to second-guess their judgment.

Because Hoemke failed to establish that New York Hospital's
failure to offer her the option of an autologous or directed
donation or to discourage staff from ordering transfusions in
operations involving relatively "little" blood loss violated
either industry practice or a reasonable prudence standard, we
accordingly affirm the district court's grant of a directed
verdict. At the same time, we caution future litigants against
construing our holding today too broadly.  Vital to our
conclusion are the particular facts of this case, specifically
the year (1981) in which the transfusion occurred. Had the
transfusion occurred even a short time later, the reasoning and
conclusions might well have been different, given the emerging
knowledge of AIDS in the 1980s.



2.   Summary Judgment for Blood Center

[5] We also affirm the district court dismissal of Hoemke's
claims against the Blood Center.  Before AIDS had been discovered
to he a blood-borne disease, no standard of reasonable care could
have required blood banks to screen out gay male donors. Such a
practice, in fact, could well have been challenged as
discriminatory. Moreover,  we  agree  with  the  district court's
conclusion that the Blood Center may not be held negligent for
not having administered the ALT test on its blood supply.  Not
only was the evidence inconclusive as to the effectiveness of ALT
in guarding against hepatitis, but it failed even to suggest that
the ALT test might have discovered blood tainted with AIDS.

3.   Summary Judgment for Physicians

[6]  Finally,  we  note that Hoemke's claims against the
physicians who conducted her operation were properly dismissed on
statute-of-limitations grounds.  Under New York law, causes of
action for medical malpractice accrue at the time of the com
mission of the alleged malpractice and must be filed within two-
and-one-half years from the date of accrual.  See N.Y.Civ.
Prac.L. & R.  214-a (McKinney 1990). The only exceptions provided
by the statute are in the cases of continuous treatment or of
foreign objects left in a patient's body. See id.

Because Hoemke's last treatment was in August 1982, and because
this case does not involve a physician's having left a "foreign
object" in her body, the limitations period for bringing an
action based on the 1981 blood transfusion had expired long
before this action was commenced in 1988. Hoemke nevertheless
argues that the limitations period should be deemed tolled in
this case on grounds of equitable estoppel. Arguing that the
physicians knew as early as 1982 that patients who had previously
received transfusions were at risk for  AIDS and that they
nevertheless purposefully and fraudulently concealed that risk in
order to allow the limitations period to run, Hoemke argues that
they should not be allowed to benefit from their procured delay
through deception.

We reject the assertion that the physicians had a continuing duty
to warn Hoemke of the slight possibility that her transfused
blood may have been tainted or that their failure to warn her
constituted fraud. This case is unlike those holding that
physicians have a duty to warn their former patients of known
risks, where a particular treatment or device later becomes known
to be harmful to all patients who had received it. See, e.g.,
Tresemer v. Barke, 86 Cal.App.3d 656, 150 Cal.Rptr. 384
(Ct.App.1978) (patient stated cause of action against physician
where physician had failed to warn patient of dangerous effects
of IUD when, subsequent to its insertion, he learned of its
hazards).  Nor is this case similar to those where a physician
intentionally concealed from a patient alleged malpractice and
falsely assure her of effective treatment, thereby delaying a
malpractice action so that it became time barred.  See, e.g.,
Simcuski v. Sacli, 44 N.Y.2d 442, 406 N.Y.S.2d 259, 377 N.E.2d
713 (1978).

This case involves neither affirmative misstatements by the
physicians nor a, failure to inform a patient whom the physicians
knew had received harmful treatment.  Rather, it involves a
calculated judgment on the part of the physicians not to alarm
(unnecessarily, in most if not all cases) thousands of patients
who had received donated blood before institution of testing for
the AIDS virus. That the physicians may have miscalculated in
Hoemke's case (in concluding that the risk that their former
patients had contracted AIDS through transfusions was too minimal
to warrant warning them of the possibility) does not raise their
conduct to the level of fraud or constitute breach of a
continuing duty of care sufficient to overcome the statute-of-
limitations bar, particularly where no evidence of an illicit
motive on the part of the physicians was presented at trial.  The
district court thus properly declined to toll the appropriate
statute of limitations on equitable grounds and appropriately
granted summary judgment to the physician defendants.

Judgment affirmed.