The hospital answered with the affirmative defense that the claim was barred because the two year statute of limitations under New York state's medical malpractice statute had expired. Under the medical malpractice statute, the statutory time limit accrues from the time of the injury. N.Y. Civ. Prac. L. & R. § 214-a (McKinney 1990). As a result, the two year period would begin to run from the date of the last blood transfusion in January, 1985.
The Supreme Court of New York County ruled that Plaintiff's complaint
was timely because the negligence, rather than the medical malpractice,
statute of limitations applied. Under negligence law in New York, the statute
of limitations is three years from the discovery of the injury in cases
where the injury "was caused by the latent effects of exposure to any substance."
Consequently, Plaintiff's claim, which was filed within one year of Korn's
discovery of her HIV positive status, was timely. N.Y.
Civ. Prac. L. & R. § 214-c (McKinney 1990).
Whether a plaintiff's claim against a hospital alleging that the hospital failed to adequately safeguard the blood supply from HIV contamination sounds in medical malpractice or negligence for the purpose of selecting the applicable statue of limitations.
The three year statute of limitations, under N.Y. Civ. Prac. L. & R. § 214-c (McKinney 1990), is proper for a claim against a hospital for allegedly failing to adequately screen and test blood for HIV/AIDS virus. Since the challenged conduct was not linked to a particular patient but to the hospital's general duty of care, the claim sounds in negligence, not medical malpractice.
Whether the claim sounds in negligence or in medical malpractice also has implications for the statute of limitations. In 1975 the New York Legislature responded to the medical crisis precipitated by a threatened withdrawal of insurance companies from the malpractice insurance market. The Legislature lowered the statute of limitations on medical malpractice suits to two and one-half years from the regular three year limitation for professional malpractice. N.Y. Civ. Prac. L. & R. § 214-a (McKinney 1990). Although section § 214-a of the statute does not define medical malpractice, the New York Court of Appeals in Bleiler v. Bodnar provided a broad interpretation, stating that "medical malpractice should not be read to exclude hospitals sued for negligent treatment rendered by their medical personnel." 65 N.Y.2d 65 (N.Y. 1985). Otherwise, the court reasoned, the reduction in the statute of limitations could be defeated if during the last six months of the three-year statute of limitations the hospital was sued and then impleaded its employees. Id. at 69. Of course not every negligent act of a hospital employee constitutes medical malpractice. The test set forth in Bleiler distinguishes those acts or omissions which "bear a substantial relationship to the rendition of medical treatment by a licensed physician." Id. at 72. In Bleiler, the court determined that the hospital staff's failure to detect a metal fragment in the plaintiff's eye during an emergency room examination was medical malpractice. In a similar case, the court again held that the acts and omissions constituted medical malpractice when an intoxicated patient was left unattended for over one-half hour in an emergency room. Scott v. Uljanov, 74 N.Y.2d 673 (N.Y. 1989). However, the court in Bleiler found that for the purposes of the statute of limitations, an action in negligence against the hospital was not barred when it alleged that the hospital was negligent in failing to provide qualified nurses and physicians, promulgate rules requiring the hospital staff to take adequate histories from patients, and promulgate rules requiring emergency room patients suffering from eye injuries to be seen by an eye specialist. Bleiler, 65 N.Y.2d at 73.
The court first considers the subtle distinction between medical malpractice and negligence. The court recognizes that medical malpractice is a species of negligence but points out that "although a 'hospital in a general sense is always furnishing medical care to patients, . . . not every act of negligence toward a patient would be medical malpractice.'" Weiner, 1996 N.Y. Int. 220 at para. 6 (citing Bleiler, 65 N.Y.2d at 73). The court sets out a test distinguishing between medical malpractice and negligence and holds that a claim sounds in medical malpractice when the conduct in question "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician." Id. (citing Bleiler, 65 N.Y.2d at 72). On the other hand, negligence is found when "the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the hospital's failure in fulfilling a different duty." Id. (citing Bleiler at 73). The court further holds that the adequacy of the hospital's blood testing and screening procedures does not implicate the hospital's role as a provider of competent medical treatment linked to the treatment of Plaintiff. Instead the claim implicates the hospital's independent duties as a blood-collection center, which the court recognizes as sounding in negligence.
The court affirms in passing that the HIV virus is a "substance" within the meaning of N.Y. Civ. Prac. L. & R. § 214-c (McKinney 1990).. Thus the claim to accrues upon discovery of the injury (or from the date when the plaintiff should have discovered such injury through the exercise of reasonable diligence) instead of from the time of injury. This classification is critical to the survival of the cause of action since a plaintiff may not develop AIDS until many years after infection.
Lastly, the court rejects the argument that a claim necessarily sounds in medical malpractice simply because the trial will require expert medical testimony. The court states that in such a case, the need for expert medical testimony means only that the technical and scientific nature of the subject matter (here blood-collection) is beyond the understanding of the average juror.
The court did not address whether this test will apply outside of the statute of limitations question. If so, the relevant distinctions between medical malpractice and negligence will have to be developed. If this test applies in areas other than the determination of the statute of limitations, it may have significant impact on the formation of litigation strategy. This distinction could affect the burden of proof, or whether there is a damage cap is a particular action. It is possible that a defendant's liability could be determined solely by whether a suit is characterized as a negligence or a medical malpractice suit.
The court decides that Plaintiff's complaint sounds in negligence for purposes of determining the applicable statute of limitations. It is unclear whether this decision is fact-specific or whether the negligence statute of limitations will apply in all cases involving HIV contaminated blood.
It is also uncertain whether this decision will apply to situations other than HIV contaminated blood. If so, in a suit naming a doctor as defendant, a plaintiff could argue that it is appropriate to bring a suit in negligence rather than for medical malpractice, based on the doctor's role as policy maker rather than for the medical attention he or she provided for the plaintiff. If the court allows Weiner to reach this far, it will have to develop a method of determining which of a doctor's actions substantially relate to medical treatment furnished to the plaintiff, and which involve a more general duty of care.
In Garcia v. Santa Rosa Health Care Corp., a wife brought an action alleging that her husband, a hemophiliac, contracted AIDS through blood products supplied by defendant health care provider. 925 S.W.2d 372 (Tex. Ct. App. 1996). The Court of Appeals of Texas held that the action was governed by the state's general tort statute of limitations and not by its medical malpractice statute of limitations period.
Several state courts have dealt with the issue of whether a complaint against a blood bank alleging that the blood bank failed to improperly safeguard its blood from various types of contamination sounds in medical malpractice or negligence for purposes of selecting the applicable statute of limitations. These decisions are relevant in light of the comparison the Court of Appeals draws between the hospital in its blood collecting role and a blood bank.
In Silva v. Southwest Florida Blood Bank, Inc., an action was brought against a blood bank to recover for a patient's contraction of the HIV virus through allegedly contaminated blood. 601 So. 2d 1184 (Fla. 1992). The Supreme Court of Florida held that the action was governed by the state's four year statute of limitations for negligence actions rather than the state's two year statute of limitations for medical malpractice actions. The court reasoned that since the blood bank did not render a diagnosis, treatment, or care to hospital patients who contracted HIV from the blood, the suit should be governed by the state's four-year statute of limitations for negligence actions. However, if the suit had arisen out of the diagnosis, treatment, or care of the patient the two-year statute of limitations would have applied.
In Swanigan v. American National Red Cross, an action was brought against a blood collection agency for negligent collection, processing, and supplying of allegedly contaminated blood. 438 S.E.2d 251 (S.C. 1993). The Supreme Court of South Carolina held that the case was governed by the state's general statute of limitations for negligence actions rather than by the state's three year statute of limitations for medical malpractice actions against licensed health care providers. The court reasoned that the collection and processing of blood does not constitute "health care" to patients so as to render the action a medical malpractice action against a licensed health care provider.
In Bradway v. American National Red Cross, a patient infected with HIV from contaminated blood during surgery brought an action against the blood bank alleging negligence in collection and supply of human blood, including screening and testing for HIV. 426 S.E.2d 849 (Ga. 1993). The Supreme Court of Georgia held that the action was an action for medical malpractice, not one for ordinary negligence. Accordingly the action was subject to the state's statute of limitations and repose for medical malpractice, rather than the statute of limitations for an ordinary negligence action. The court reasoned that since the patient's injuries resulted from activities which were the product of medical knowledge and judgment, rather than negligence in performing a task (such as giving the transfusion) the action sounded in medical malpractice.
Several state courts seem to have decided whether the action is negligence or medical malpractice based on whether or not the provider of the blood is a blood bank or a hospital or health care provider. The following cases suggest that if the same action involved a hospital, as opposed to a blood bank, the court might have reached the opposite result. In John Doe v. American National Red Cross, the plaintiff sued in negligence alleging defendant blood bank's failure to properly screen donors and test blood or blood products. 500 N.W.2d 264 (Wis. 1993). The Supreme Court of Wisconsin held that a blood bank was not a health care provider within the meaning of the state medical malpractice statute. As a result, the state's personal injury statute of limitations applied, rather than the medical malpractice statute of limitations.
In Kaiser v. Memorial Blood Center of Minneapolis, Inc., the plaintiff alleged he had contracted HIV as a result of a blood transfusion using contaminated blood from the defendant blood bank. 486 N.W.2d 762 (Minn. 1992). The Supreme Court of Minnesota held that the plaintiff's action was not an action for medical malpractice. The court reasoned that a blood bank not affiliated with a hospital should not be classified as a hospital or sanitarium within the meaning of the state's medical malpractice statutes. Consequently, the action was governed by the state's six year negligence statute of limitations rather than the state's two year medical malpractice statute of limitations.