of the term "negligence" in the complaint, the actual
wrongdoing alleged constitutes medical malpractice. In support
of its position, it asserts that the question of whether or
not a hospital exercised due care in its blood-screening
procedures is not a matter easily discernible by a jury on
common knowledge, but will require expert medical testimony,
the critical distinguishing feature of a medical malpractice
case. Citing Khan v. New York Blood Center, Inc., et al. (N.Y.
Sup. Ct. 1990) Index No. 4694/90, it further argues that
transfusing blood bears such a substantial relationship to
medical treatment that actions arising out of this service are
by nature medical malpractice actions. Def.Mem. at 11-12.
Plaintiff responds that the complaint properly states a claim
In Bleiler v. Bodnar, et al. (1985) 65 N.Y.2d 65, 489
N.Y.S.2d 885, 479 N.E.2d 230, the New York Court of Appeals
addressed the distinction between claims which sound in
malpractice and those which sound in negligence and held that
conduct which "constitutes medical treatment or bears a
substantial relationship to the rendition of medical treatment
by a licensed physician" is medical malpractice, whereas
conduct such as a claim that a hospital failed to provide a
patient with competent and qualified nurses or failed to
promulgate rules requiring doctors to take adequate medical
histories from patients sounds in negligence. The Bleiler Court
expressly noted that "[a] hospital in a general sense is always
furnishing medical care to patients, but clearly not every act
of negligence toward a patient would be medical malpractice".
65 N.Y.2d at 74, 489 N.Y.S.2d at 890, 479 N.E.2d 230.
Applying this analysis to the facts before us, we find that
the claim that a hospital failed to employ procedures which
would adequately insure that the blood it obtained for
transfusions was not toxic is most closely analogous to a
claim of failure to hire competent employees or failure to
provide functioning wheelchairs to patients. See e.g., DeLeon
v. Hosp. of the Albert Einstein College of Medicine (1st Dept.
1991) 164 A.D.2d 743, 566 N.Y.S.2d 213; McCormack v. Mount
Sinai Hosp. (2nd Dept. 1981) 85 A.D.2d 596, 444 N.Y.S.2d 702.
The nature of this claim is not such that it calls into
question the competency of the medical decisions made regarding
Sweeney's treatment; the complaint does not allege that the
decision to give Sweeney a transfusion was wrongful, nor does
it — as was the case in Khan — charge that the hospital was
negligent in the manner in which it administered the
transfusion.*fn2 Rather, the instant claim challenges the
competency of the hospital as a supplier of a particular
product, namely blood. As such, the requisite elements of this
claim are that the hospital failed to exercise reasonable care
in selecting and furnishing blood — as judged by comparison to
the blood-screening procedures then available or employed by
other hospitals in the relevant community — and that such
failure was a proximate cause of Sweeney's injury and death;
elements which are markedly different from medical malpractice,
and which do not necessitate expert medical knowledge. See
DiMarco v. Hudson Valley Blood Services (Brx.Sup.Ct. 1988)
141 Misc.2d 59, 532 N.Y.S.2d 488, rev'd on other grounds,
147 A.D.2d 156, 542 N.Y.S.2d 521 (action against blood center for
HIV contaminated blood lies in negligence); John Doe v. New
York Hospital (N.Y. Sup. Ct. 1990) 148 Misc.2d 756, 561
N.Y.S.2d 326 (action against hospital for failure to adequately
screen blood for HIV virus sounds in negligence).
A similar analysis applies to plaintiff's claim that the
hospital was negligent in failing to provide for "directed
donation" of blood, i.e. a procedure by which relatives of, or
persons known to, the patient may donate blood for that
use. The complaint does not allege that Presbyterian led
either plaintiff or his doctor to make an erroneous decision
as to whether or not to seek a directed donation (which would
have been a claim of malpractice), but rather that it was
negligent in failing to provide the mechanism for the making
of such a decision.
Accordingly, we conclude that the claims against
Presbyterian sound in negligence.
New York courts having recognized blood contaminated with
the HIV virus as a toxin within the meaning of CPLR § 214-c,
see DiMarco v. Hudson Valley Blood Services (1st Dept. 1989)
147 A.D.2d 156, 542 N.Y.S.2d 521, Prego v. City of New York
(2nd Dept. 1989) 147 A.D.2d 165, 541 N.Y.S.2d 995, so that the
three year statute of limitations would not have begun to run
until the day on which the injury was discovered or with
reasonable care should have been discovered. There could not
possibly have been such discovery before Sweeney learned that
he might have received tainted blood in the transfusion, an
event which occurred just six months before his death. It
follows that any negligence cause of action which Sweeney might
then have asserted was available to his executor when this
action was filed fourteen months after his death, and that any
conceivable limitations deadline has been satisfied. See N.Y.
EPTL § 11-3.2(b) (survival action is timely where action by
decedent would have been timely, "No cause of action for injury
to person or property is lost because of the death of the
person in whose favor the cause of action existed."); N.Y. EPTL
§ 5-4.1 (wrongful death action "must be commenced within two
years after the decedent's death", and may be maintained only
against persons "who would have been liable to the decedent . .
. if death had not ensued").
Presbyterian's motion to dismiss the complaint is denied. As
this motion was based solely on the theory that the complaint
alleges a claim sounding in medical malpractice (which would
have been time-barred), we express no view as to the merits of
any claim of negligence.
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