NoBlood

Blood does not fall under the same standards as other healthcare products. Blood Banks and fractionators enjoy protection under special laws that shield them from prosecution and law suit on the basis of product liability. These blood shield laws were instituted because from the beginning blood transfusions exposed patients to risks that were so great that banked blood would not have survived.

Without these blood shield laws the nation’s blood bank system would have been crippled or ruined by the 1980-85 blood transfusion related HIV transmissions. Note what happened in Canada. Canada assigned a special judge and panel (Krever Commission- http://www.aidslaw.ca/Maincontent/ot...il1995/312.htm) to investigate the blood system and recommend changes to the blood bank system. Because of that Canada revamped its blood banking system AND the door was opened for blood resistance (bloodless, blood conservation) programs.

With the high number of transfusion related Hep C cases blood shield laws are coming under challenge. Perhaps other countries will follow Canada's lead in restructuring their blood banking system. Perhaps blood will be held to the same standards as drugs thus allowing the public recourse when injured by blood transfusions.

States institute their own shield laws.

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Medline - http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list_uids=11571894&dopt

J Health Law. 2001 Summer;34(3):419-58.



Rethinking blood shield statutes in view of the hepatitis C pandemic and other emerging threats to the blood supply.

Rueda A.

ruedaa_andres@hotmail.com

Researchers have identified at least twenty-five pathogens that can be transmitted through blood transfusions. Four percent of patients who receive the average amount of blood during a transfusion are at risk of being infected with a contaminated unit, and exposed to the danger of serious adverse reactions, including future debilitating conditions. Victims of transfusion-related diseases, however, generally have been unsuccessful when making claims against the purveyors of blood products because of blood shield statutes that were initially enacted in response to unknown pathogens that made the blood an "unavoidably unsafe" product. Today, blood purveyors are aware of the possibility of epidemics from unsafe blood and have continued to research and supervise the blood supply to create mechanisms that detect and inactivate various blood-borne pathogens. In response to the current and advancing methods of blood purification, this Article suggests that a hybrid strict liability/negligence standard be implemented to ensure advancements in safety of blood transfusions. A strict liability standard should attach for infections that can be detected and eliminated through current testing and inactivation methods. A negligence standard should govern infections for which no current test or inactivating method is available. Under this approach, blood purveyors would be compelled to take account of the risks of any manufacturing decisions that they make, and they would not enjoy the freedom from liability that the blood shield statutes now provide. The costs necessary to ensure compliance with this hybrid structure are small in comparison to the social and economic costs exacted by thousands of transfusion-related diseases.
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Here's a case where attorney's try to make a blood bank accountable for passing AIDS tainted blood to a patient...this case illustrates the difficulty of attaching "liability" and shows the need to revamp the law.....

January 24, 1997


ILLINOIS HOLDS BLOOD BANKS TO PROFESSIONAL STANDARD OF CARE UNDER BLOOD SHIELD ACT

Blood banks must conform to professional standard of care in protecting blood supply from AIDS virus, but plaintiff may show that prevailing professional custom or practice constitutes negligence.


Advincula v. United Blood Services, No. 79653 (Ill., Dec. 19, 1997), (1996 WL 732045) is a negligence suit against a blood bank. In 1984, United Blood Services, a company that operates nationwide mobile blood collection centers, collected a unit of HIV-c ontaminated blood from a donor at a volunteer blood drive. Advincula received the blood in a transfusion during open-heart bypass surgery. Thereafter, he contracted the AIDS virus and died. His wife sued UBS, alleging that it had negligently failed to scr een the HIV-contaminated blood. UBS defense was that at the time this blood was collected, few, if any blood banks used such screening procedures.

Under Section 3 of Illinois' Blood Shield Act, a blood bank has a legal duty "to exercise due care and follow professional standards of care" in providing the service "according to the current state of professional arts." The trial court agreed with the plaintiff and held that section 3 expressed a due care or "ordinary negligence" standard, i.e., that of a reasonably careful blood bank under the circumstances, not merely conformity to accepted professional practices.

On appeal to the Illinois Supreme Court, ATLAs amicus curiae brief urged the court to uphold the trial court's statutory construction but, even if the blood bank were held to professional standards alone, plaintiff should be permitted to prove that ind ustry standards were unacceptably deficient in view of the information about AIDS that was available to the industry at the time. Looking to the express language, statutory history, and common law, the Court found that section 3 must be construed to require a "professional standard of care," which is the standard imposed upon blood banks in most jurisdictions. The Court also determ ined that evidence that defendant's conduct conformed with the general custom or practice among blood banks is evidence of due care. However, it is not conclusive. Plaintiff may present expert testimony that the prevailing professional practice is itself unreasonable and constitutes negligence.

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To deepen your research I recommend searching Google under Blood Shield Law by state. In the mean time here are a few links.

Washington State (not a sale…a service) - http://www.mrsc.org/mc/courts/supreme/114wn2d/114wn2d0042.htm
Illinois (interesting and hopeful precedent set) - http://www.atla.org/courts/amicus/anews12.aspx

Louisiana - http://www.jwlaw.com/db30/cgi-bin/pubs/productsvol18.htm#chauvin

New York - http://www.napolikaiser.com/article230.cfm

Florida - http://www.aegis.com/news/ap/2002/AP020750.html

Minnesota and Florida - http://www.aegis.com/news/wsj/1992/WJ920802.html

California - http://litigationcenter.bna.com/pic2/lit.nsf/id/BNAP-5QEKWL?OpenDocument

General - http://hivinsite.ucsf.edu/InSite.jsp?doc=2098.2c4f

http://hivinsite.ucsf.edu/InSite.jsp?doc=2098.2852

http://www.hepcompensation.com/HepC_justice.htm

Tainted Blood from Prisoners - http://www.newsmax.com/articles/?a=1999/2/15/94906
Florida Father gets HIV - http://www.sptimes.com/2002/07/24/ne...t_HIV_to.shtml
Families of tainted blood victims win case - http://www.freerepublic.com/forum/a3adf2d273632.htm

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Mr. Jan B. Wade
Blood Management Consultant
Enhance Outcomes - Control Cost
For Information Call - 360 296-1807
Email