Opinion
Civil Action No. 01-2304, Section "C" (2)
July 9, 2002
ORDER AND REASONS
This matter comes before the Court on renewed motion for summary judgment filed by the defendant. Having considered the record, the memoranda of counsel and the law, the Court has determined that summary judgment is appropriate for the following reasons.
The plaintiff, George Lupo ("Lupo") is suing the Veterans Administration Hospital, ("VA") in negligence for allegedly exposing him to Hepatitis C during a blood transfusion received in 1966 in their New Orleans hospital. Specifically, the plaintiff claims that the defendant was negligent in not performing the SGPT/ALT test on the blood to determine if the donor had liver disfunction, and for not warning the plaintiff that it had not performed this test. The original motion for summary judgment was denied. This renewed motion is based on the single additional undisputed fact that "[b]lood banks in the United States did not institute routine testing of donors for SGPT, now ALT, until 1986."
The defendant also cites as support a recent decision, Chauvin v. Sisters of Mercy Health System, 2002 WL 1034046 (La.App. 4th Cir. May 8, 2002), in which the court held, "Louisiana did not recognize a cause of action for such naturally occurring, unknown blood-borne pathogens acquired through medically indicated transfusions in 1963," and dismissed claims of strict liability and negligence. Id., at *7.
This Court's analysis focuses only on the existence of a duty.
The existence of a duty may be determined by considering the ease of association between the alleged duty and the risk encountered, as well as social, moral and economic factors. . . . Moreover, when determining if a duty exists, this Court must consider the fact that duties are designed to protect some persons under some circumstances against some risks. . . . The scope of the duty owed is fact sensitive and ultimately turns on a "question of policy as to whether the particular risk falls within the scope of the duty."Barbarin v. Dudley, 775 So.2d 657, 660 (La.App. 4th Cir. 2000), writ denied, 787 So.2d 316 (La. 2001) (emphasis original) (internal citations omitted). "Duty can be stated generally as the obligation to conform to the standard of conduct of a reasonable man under like circumstances. Whether a duty exists is dependent on the relationship between the parties." Litchi v. Schumpert Medical Center, 750 So.2d 419, 423 (La.App. 2d Cir.), writ denied, 760 So.2d 349 (La. 2000). In Lichti, supra, the court recognized:
A hospital owes a duty to exercise the necessary care toward a patient that the patient's condition requires, including protecting from dangers that may result from the patient's mental and physical incapacities and from the external circumstances particularly within the hospital's control. . . . Thus, [the hospital] owed [the patient] a duty to exercise the necessary patient care and to protect her from the dangers within the hospital' s control."Id.
Here, the undisputed facts indicate that in 1966, the association between transfusions and post-transfusion or serum hepatitis was established, and studies on the disease, including studies as to the efficacy of performing SGPT/ALT tests on donated blood, were underway. These facts are established primarily through the affidavit of Dr. Richard Kamm and his review of various medical articles. However, the only evidence that a hospital actually performed the SGPT/ALT test on donated blood in 1966 is contained in a 1960 medical journal letter article summarizing the results of a study undertaken at St. Luke's Memorial Hospital in Wisconsin. The plaintiff also submits the affidavit of Dr. Raymond Gambino, who states without specificity, "[t]he test was done routinely in hospitals. . . ," but apparently not as a screen for donated blood. Critically lacking in the evidence, and the affidavits of Dr. Kamm and the letter of Dr. Gambino, is support for the fact that any blood bank or hospital, other than perhaps St. Luke's, routinely performed the SGPT/ALT test on donated blood to avoid transmission of post-transfusion serum hepatitis in 1966, or support for the fact that such testing was incorporated into any standards governing or adopted by blood banks or hospitals. Evidence that hepatitis-specific warnings were provided to hospital transfusion patients in 1966 is also lacking. Instead, the undisputed facts indicate over 20 years passed between the plaintiff's transfusion and the discovery of the Hepatitis C virus and a test for it.
In fact, Dr. Kamm identifies a 1995 letter article written by Dr. Gambino wherein he describes the "lost opportunity cost" of not performing the test in 1960, describes his unsuccessful attempt to convince the medical director of the Milwaukee Blood Center in 1960, stating "I and my laboratory associates gave up too soon in our efforts to disabuse blood bank officers of their incorrect perception."
Under these facts, the Court can not find that the defendant hospital owed a duty to perform the SGPT/ALT test on donated blood in 1966, and did not owe the plaintiff a duty to warn. "The supplying blood bank screened donors and tested blood in accordance with the latest accepted guidelines in effect at that time. The hospital followed the normal accepted procedures in administering the blood." Juneau v. Interstate Blood Bank, Inc. of Louisiana, 333 So.2d 354, 356 (La.App. 3d Cir.) writ denied, 337 So.2d 220 (La. 1976). The undisputed evidence establishes that the science leading up to the eventual identification of the Hepatitis C virus and its antibody was being developed during the 1960's. To hold hospitals in 1966 to a duty to overhaul procedures based solely on the results of a few studies, or warn patients of those results, does not serve the public interest. In fact, the recognition of such duties may actually adversely affect hospital care and cost, blood availability and cost, and the freedom now enjoyed by those performing scientific research.
Accordingly,
IT IS ORDERED that the motion for summary judgment filed by the United States of America is GRANTED.