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SMYTHE v. AMERICAN RED CROSS BLOOD SERVS. NORTHEAS

July 16, 1992

ELAINE SMYTHE, Plaintiff,
v.
AMERICAN RED CROSS BLOOD SERVICES NORTHEASTERN NEW YORK REGION and ALBANY MEDICAL CENTER HOSPITAL, Defendants.



The opinion of the court was delivered by: NEAL P. MCCURN

 MEMORANDUM-DECISION AND ORDER

 INTRODUCTION

 Plaintiff originally commenced this action in New York State Supreme Court. Pursuant to 28 U.S.C. § 1441 and 36 U.S.C. § 2, *fn1" defendant American Red Cross ("Red Cross") removed the action to this court with defendant Albany Medical Center's ("Hospital") concurrence. In her complaint, plaintiff alleged that the Hospital malpracticed upon her and negligently administered blood and blood products in contravention of accepted medical and surgical standards and that this negligence caused her injury. See Plaintiff's Complaint at P 15. In addition, plaintiff alleged that the Red Cross was negligent in its procedures for gathering and distributing blood and blood products and that this negligence likewise caused her injury. See Plaintiff's Complaint at P 23.

 Although at certain times during this litigation plaintiff has been represented by counsel, presently she is proceeding pro se. Due to the difficulty plaintiff has encountered in her attempts to retain counsel to represent her, the court has been very lenient in granting extensions of time to plaintiff so that she might conduct discovery. Despite this favorable treatment, however, the court found it necessary to place this case on its March 12, 1992, dismissal calendar pursuant to Local Rule 11. *fn2" On March 12th, Ms. Smythe appeared before the court and requested additional time to retain an attorney. The court agreed to an additional extension until May 7, 1992, at which time, the court informed Ms. Smythe, a trial on this matter would commence. In addition, the court explained to Ms. Smythe that if she were able to retain counsel prior to May 7th, the court would be willing to sit down with both sides to attempt to settle this matter. If she were unsuccessful in her attempt to retain counsel, however, the court told Ms. Smythe that she should be ready for trial on May 7th.

 Subsequently, on April 14, 1992, counsel for the Red Cross and the Hospital apprised the court that they intended to move for summary judgment. Therefore, they requested that the court postpone the trial until after its determination of these motions. The court agreed to this request. It is these summary judgment motions which are presently before the court.

 BACKGROUND

 On May 2, 1986, plaintiff was admitted to the Hospital for emergency quadruple bypass surgery. See Plaintiff's Response to Red Cross' Request for Interrogatories at P 6. Upon her arrival at the Hospital, it was determined that plaintiff's platelet count was too low and that this would interfere with her emergency surgery. Therefore, plaintiff received a transfusion of platelet concentrate from whole blood, unit number 56F28234, prior to her operation. See Red Cross' Answers to Plaintiff's Interrogatories at P 19c.

 The unit of blood in question was donated to the Red Cross on April 30, 1986. See Lamberson Declaration at P 17. Prior to the donation, the Red Cross presented the donor with a donor education pamphlet entitled "Latest Facts: Donor and Patient Safety: What You Should Know About Giving Blood." See id. The Red Cross' employees instructed the donor to read the pamphlet before proceeding with his donation. See id. In addition to this oral instruction, the literature itself instructed the donor to review it carefully and informed him that he would be asked to sign a statement indicating that he understood the information contained therein. See id.

 The purpose of this pamphlet was to help prevent the spread of certain illnesses, including AIDS, by blood transfusions. The pamphlet described the groups of individuals who, according to the Federal Drug Administration ("FDA"), were most in danger of contracting and spreading AIDS. In addition, the pamphlet warned that people in these groups must not give blood. It also described the signs and symptoms of AIDS and advised the donor that if any of the information in the pamphlet regarding AIDS or other transmissible diseases pertained to him, he should not give blood. After reading the pamphlet, the donor signed a statement indicating that he had read and understood the information contained therein. See Red Cross' 10(j) Statement, Appendix 5 -- Donor Health History Card.

 In addition to reading this pamphlet, the donor was also required to answer approximately twenty questions concerning his medical history. These questions included several specifically designed to elicit information regarding his exposure to AIDS. See id. None of the donor's responses indicated that he should be disqualified from giving blood. After answering these questions, he signed a statement affirming that he had accurately answered each of them and that he was donating his blood to the Red Cross voluntarily. See id.

 After the donor signed this statement, a nurse for the Red Cross gave the donor a brief physical examination that included checking his temperature, pulse, blood pressure and hemoglobin count. See Red Cross' Answers to Plaintiff's Interrogatories at P 9e.2. The results of these tests were within the appropriate ranges. See Red Cross' 10(j) Statement, Appendix 5 -- Donor Health History Card. The nurse also examined the donor's arms to confirm that he was not an intravenous drug user and that he did not have any infectious skin diseases. See Lamberson Declaration at P 25. Only after all of these procedures were completed did the Red Cross' nurse draw the donor's blood.

 Following the donation, unit number 56F28234 was tested for antibodies to HIV using an FDA-licensed test that the Red Cross and many volunteer blood collectors used for screening the blood supply at that time. See Red Cross' 10(j) Statement, Appendix 7; Lamberson Declaration at P 27. The test result was negative. See id. The blood also was subjected to several other serologic tests, including blood typing, screening for atypical antibodies, and testing for syphilis and the hepatitis B virus. See Red Cross' 10(j) Statement, Appendix 8; Lamberson Declaration at P 27. The results of these tests were also negative. See id. As a final precaution, the Red Cross checked its National Donor Deferral Registry to ensure that the donor had not previously been deferred from giving blood. See Lamberson Declaration at P 22. Finding no such deferral, the Red Cross then processed the donated blood into components and distributed the platelet concentrate from this unit to the Hospital where it was transfused into plaintiff on May 2, 1986. See Red Cross' Answers to Plaintiff's Interrogatories at P 19c; Lamberson Declaration at P 29. At no time, either before or after his donation, did the donor inform the Red Cross that his blood should not be used. See Lamberson Declaration at P 29.

 On June 25, 1986, the donor of unit 56F28234 returned to the Red Cross to donate more blood. As was its practice, the Red Cross tested this new donation for HIV antibodies. This unit tested repeatedly reactive in the FDA-licensed screening test for HIV antibodies and upon additional testing was confirmed to be positive. See Lamberson Declaration at P 30. Pursuant to its policy, the Red Cross attempted to identify previous recipients of that donor's blood. It was through this procedure that the Red Cross identified Ms. Smythe. On July 30, 1986, the Red Cross notified the Hospital of this information. See Red Cross' 10(j) Statement, Appendix 10. Upon receiving ...


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