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Some AIDS Victims Win Blood Cases

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TIMES STAFF WRITER

In a significant outgrowth of the AIDS epidemic, hundreds of people who contracted the deadly disease through blood transfusions are seeking solace in court--and the $2.5-billion blood-selling industry is worried that the legal backlash could be financially devastating.

A small number of these medical negligence cases have been settled for large amounts of money, and another 300 lawsuits nationally are poised for trial, mostly in San Francisco, New York and Los Angeles, places where the epidemic has hit hardest.

This is only the beginning, say legal experts, who expect thousands of cases to clog the courts in the next few years as more people discover that they were given tainted blood during the early years of the AIDS epidemic.

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“These awards are far higher than in other types of cases because the jury tries harder because of the disease, because they have all personally felt that fear,” said attorney Duncan Barr, who has successfully defended San Francisco’s Irwin Memorial Blood Bank in several cases.

In Arizona, a 5-year-old boy whose parents claimed that he was given an unnecessary blood transfusion recently was awarded $28.7 million--believed to be the largest such award--and there have been several other jury verdicts in the $12-million range.

The American Red Cross, which collects half the U.S. blood supply, will not comment on how many lawsuits have been filed against it over allegedly tainted blood transfusions. “To release those figures would create more mischief,” said one official.

James MacPherson, of the Blood Council of Community Blood Centers, said that most centers were insured only for $2 million to $5 million a year for the years in question. If they run out of insurance, they will have to dig into reserves, increase costs of blood sales or perhaps go bankrupt, he said.

While it has been eight years since the first medical reports made connections between transfusions and AIDS, legal cases are only surfacing now because of the lag time between becoming infected with the human immunodeficiency virus, which causes AIDS, and onset of physical symptoms.

An estimated 26 million people received transfusions between 1977 and 1985--years when the AIDS epidemic exploded.

In the latter 1980s, blood banks and hospitals took steps to ensure safer blood, but scientists disagree on the chances of contracting AIDS today through transfusions. Some place the number as low as one in 500,000, others as high as one in 50,000. Since 1985, when blood banks began testing for the HIV virus, only 12 new cases of AIDS have been reported to have been contracted through transfusions, federal statistics show.

Of the estimated 143,500 known to have contracted AIDS nationally, the federal Centers for Disease Control reported that 3,351 adults and 238 children have developed the disease through blood transfusions.

Another 1,258 hemophiliacs have developed the disease through blood-based clotting medicine, and it is estimated that 12,000 more have tested positive for HIV because of the medicine.

In Los Angeles County, health officials said 194 adults and 36 children have contracted AIDS through transfusions.

According to legal experts, the outcome of the impending courtroom battles could hinge on the question of how well informed the medical community was in the 1983-85 period as to the risk of the HIV virus in the blood supply.

Plaintiffs have argued that the blood banks, fearing loss of donors and money, ignored scientific warnings about the threat of HIV-contaminated blood, failed to screen out high-risk donors through confidential questionnaires that identified high-risk behavior, and refused to perform tests for other diseases that were often present in HIV-infected donors.

The medical profession, they contend, failed to advise patients that they could use their own blood or that of acquaintances instead of taking a chance with the general blood pool.

They also failed to warn patients that blood transfusions could be deadly, plaintiffs contend.

The blood banks, hospitals and many doctors have said that there was a lack of scientific evidence about the AIDS threat to the blood supply at the time.

As a result, a central issue in the blood-transfusion lawsuits has been, “Who knew what, and when did they know it?” said Fred Meis, a San Francisco attorney who is litigating 20 cases, including several against Irwin Memorial--the city’s major blood bank.

In some of the first lawsuits, jurors found it difficult to find fault with the blood banks, generally viewing them sympathetically. “They are like God, the flag and apple pie,” one attorney said of the blood banks.

Likewise, the blood banks seemed to have the law on their side. Courts in 48 states have held that blood is a “service” and not a “product.” As a result, blood centers have been generally protected from liability suits, forcing plaintiffs to sue on other legal grounds.

Barr noted that blood banks have fared well because “the overwhelming view of juries has been that the blood banks were doing everything they could to keep the blood supply safe.”

In recent months, as more trials unfold, the trend seems to be turning toward plaintiffs, according to Michael Moriarty, a San Francisco attorney who in 1988 paved the way for other suits by winning the first verdict in the country in a blood-transfusion case.

As evidence of this turnabout, he and others pointed to several large verdicts garnered recently, and to the blood banks’ willingness to settle cases before trial.

“We are in a period of blood-bank bashing,” said Bruce Chadwick, national counsel for Washington-based American Red Cross. “Yes, there were people who became AIDS-infected, that is true. But no one in the blood banks wanted that. These are people who devote their lives to trying to do good, save lives.”

Larry Gostin, director of the Boston-based Assn. of Law and Medicine, which tracks these cases, said that jury awards “tarnished the blood banks’ reputations and the public confidence in them.”

In one of the first cases of its kind locally and only one of a handful nationally, a Los Angeles County Superior Court jury last month awarded an AIDS-stricken girl $3.01 million. The jurors unanimously agreed that the doctors failed to properly advise the family of the AIDS risk in blood transfusions. The hospital was faulted because one of the doctors was its employee.

The Los Angeles chapter of the American Red Cross, which provided the blood to the hospital and denied any negligence, settled its portion of the suit out of court two days before the trial. The settlement was not disclosed.

In 1984, the girl had received a pint of blood during non-emergency heart surgery at Los Angeles Childrens Hospital. The operation to repair a congenital heart defect was a success. Three years later, it was discovered that a man who had given blood to the Red Cross had contracted AIDS.

The 4-year-old child was one of several people who received his blood, subsequently tested positive for the HIV virus and today, with the first symptoms of the disease emerging, she is being treated with AZT, a drug that has been shown to slow the development of AIDS.

The plaintiffs alleged that one of the doctors told the mother there was only a “one in a million” chance that blood could be tainted. At the time, the risk was known to be much higher, the family’s attorney said. Attorneys for the hospital and doctors would not discuss the case, pending an appeal.

The case illustrates several dynamics of these lawsuits: When the cases reach juries, plaintiffs often are perceived to be, as one medical expert put it, “innocent victims.” Also, juries look most sympathetically at children who have contracted AIDS, then look for someone to blame. Conversely, drug users and gay men who have tried to prove that partners were negligent generally have not been as successful before juries.

Meanwhile, despite the large awards, those who have had their day in court say that there are really no winners. The mother of the Los Angeles girl, who asked to remain anonymous because she feared social ostracism of her daughter, explained: “I was partly happy when we won the case. It means when she needs medicine and care I can buy it for her. But even though we won the case, in the end I will still lose her.”

Although a small number of blood banks were taking all safety measures available at the time, most did not allow recipients to choose donors, screen them for high-risk lifestyles and provide a test for the hepatitis B core antibody, which was thought to be effective in identifying groups at risk for AIDS.

In the case of the 4-year-old Los Angeles girl, Superior Court Judge Diane Wayne ruled that the plaintiffs had not presented enough evidence to sue the local Red Cross on allegations that it failed to adequately screen prospective blood donors. However, she allowed the plaintiff to sue the Red Cross for negligence in not providing hepatitis B testing and for failing to warn about the risks in the blood supply.

The stricken girl’s attorney, Martin M. Berman, said the blood banks have had an advantage on the issue referred to as “standard of care”--what type of care is generally being provided in the medical community at the time. Several appellate courts across the country have ruled that hepatitis B testing was not standard treatment.

Blood bank officials agreed that they ignored the advice and fought introduction of these tests because they were inconclusive or too costly, or because they feared losing donors. They insist that they were doing the best they could under the circumstances.

Chadwick, the attorney for American Red Cross, explained the thinking at the time: “There was tremendous controversy and great scientific debate on whether . . . tests would make good sense or cause more problems than good.”

Also, the blood banks and medical community have argued that they knew very little about AIDS in the early 1980s.

Some intriguing legal side issues are also arising from the AIDS blood-transfusion cases. They include whether the anonymous donors who infected the blood supply can be identified and forced to testify, and whether the federal health agencies can be forced to allow their scientists to be called to the witness stand.

Several attorneys in San Francisco, who are handling 20 cases among them, have banded together to try to require key government scientists to provide one-time court depositions that they could all use in their legal proceedings.

Blood banks have generally refused to reveal donors, arguing that it would violate the physician-patient privilege of confidentiality, the donor’s right to privacy and statutes limiting release of AIDS test results.

With large jury awards expected to continue, blood banks and others are looking for ways to deal with the financial crisis.

MacPherson, head of the Blood Council, said his group and others are looking at creating a federally aided no-fault compensation fund, similar to those that are set up to protect obstetricians against negligence suits in some states or those that compensate vaccine victims.

Meanwhile, the American Red Cross recently announced that it will bring its 54 regional offices under tighter control to ensure a safe blood supply.

“Our blood banks failed us, the blood industry failed us, the Centers for Disease Control failed us, and the Food and Drug Administration failed us,” Dr. Marcus Conant, a professor at UC Medical Center in San Francisco, told a House subcommittee hearing on blood safety last month.

In California, the Paul Gann Blood Safety Act took effect this year. Named after the late anti-tax crusader who said he received AIDS-tainted blood through a transfusion, the act requires the medical profession to tell patients about blood-donor options, such as using one’s own blood or asking acquaintances to donate.

Some critics are not reassured by such changes.

Gostin, director of Assn. of Law and Medicine, said that last year, Los Angeles doctors confirmed the first West Coast case of infection with a variant AIDS virus called HIV-2. It first surfaced in West Africa.

European blood banks have begun testing blood for this new virus, but U.S. public health officials have not, saying that 60% to 90% of HIV-2 cases are detected with the standard test.

“Is history repeating itself?” Gostin asks.

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