The opinion of the court was delivered by: Whitman Knapp, Senior District Judge.
By memorandum and order dated June 20, 1990 we dismissed the
complaint in this action as against Dr. Malm on the ground
that the New York State statute of limitations for medical
malpractice actions barred all claims against him. Sweeney v.
Presbyterian/Columbia Presbyterian Medical Center (S.D.N.Y.
1990) 738 F. Supp. 802. Familiarity with that decision is
presumed. Defendant Presbyterian/Columbia Presbyterian Medical
Center (hereinafter "Presbyterian" or "defendant") now moves
pursuant to Fed.R.Civ.P. 12 to dismiss the claims asserted
against it on the ground that they also sound in medical
malpractice and are similarly time-barred. For the reasons that
follow, we deny this motion.
We summarize only those facts necessary to an understanding
of the questions raised by this motion.
On July 6, 1984 the decedent James Sweeney underwent triple
bypass heart surgery at Presbyterian Hospital; and on July 10,
while under the supervision and care of Presbyterian, he was
given a blood transfusion. Three years later, in June 1987, he
was informed that the blood he had received during the
transfusion may have been tainted with the HIV virus, and on
July 9, 1987 he learned that he tested positive for the HIV
virus. Five months later, on December 15, he died of AIDS. On
February 14, 1989, one year and two months after his death,
his widow, who is also the executrix of his estate, commenced
the instant survival and wrongful death action.
As against Presbyterian, the complaint alleges that
Presbyterian was "negligent" in its performance of its duty to
obtain "safe" blood for transfusions; and that such negligence
was the direct and proximate cause of Sweeney's contraction of
AIDS, the pain and suffering related thereto, and his ultimate
death. See Compl. First Count ¶¶ 15,16. Specifically, the
complaint asserts that "it was the duty of defendant,
Presbyterian Hospital . . . to appropriately test . . . blood
for contaminants, including HIV, to utilize `surrogate testing'
for hepatitis B virus, to procure said blood from sources which
adequately screened potential donors, . . . and to provide a
`directed donation' program, whereby specific donated blood
could be targeted for particular recipients", id. at ¶ 14; and
that Presbyterian failed so to perform. Both the survival and
wrongful death claims are based on this asserted negligence.
The dispute between the parties turns on whether, as with
Dr. Malm, the complaint against Presbyterian alleges
malpractice, governed by the two and one-half year statute of
limitations set forth in N.Y. CPLR § 214-a, or whether it
essentially sounds in negligence, governed by the longer three
year statute of limitations, calculated from the date of
discovery of the injury, as set forth in CPLR §§ 214,
214-c.*fn1 Presbyterian contends that despite the use
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).
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 ...