AMICUS NEWS
No. 12. January 24,
1997
ILLINOIS HOLDS BLOOD
BANKS TO PROFESSIONAL STANDARD OF CARE UNDER BLOOD SHIELD ACT
Blood banks must conform
to professional standard of care in protecting blood supply from AIDS virus,
but plaintiff may show that prevailing professional custom or practice constitutes
negligence.
Advincula v. United
Blood Services, No. 79653 (Ill., Dec. 19, 1997), (1996 WL 732045) is a negligence
suit against a blood bank. In 1984, United Blood Services, a company that
operates nationwide mobile blood collection centers, collected a unit of
HIV-c ontaminated blood from a donor at a volunteer blood drive. Advincula
received the blood in a transfusion during open-heart bypass surgery. Thereafter,
he contracted the AIDS virus and died. His wife sued UBS, alleging that
it had negligently failed to scr een the HIV-contaminated blood. UBS defense
was that at the time this blood was collected, few, if any blood banks used
such screening procedures.
Under Section 3 of
Illinois' Blood Shield Act, a blood bank has a legal duty "to exercise due
care and follow professional standards of care" in providing the service
"according to the current state of professional arts." The trial court agreed
with the plaintiff and held that section 3 expressed a due care or "ordinary
negligence" standard, i.e., that of a reasonably careful blood bank under
the circumstances, not merely conformity to accepted professional practices.
On appeal to the Illinois
Supreme Court, AAJs amicus curiae brief urged the court to uphold the trial
court's statutory construction but, even if the blood bank were held to
professional standards alone, plaintiff should be permitted to prove that
ind ustry standards were unacceptably deficient in view of the information
about AIDS that was available to the industry at the time.
Looking to the express
language, statutory history, and common law, the Court found that section
3 must be construed to require a "professional standard of care," which
is the standard imposed upon blood banks in most jurisdictions. The Court
also determ ined that evidence that defendant's conduct conformed with the
general custom or practice among blood banks is evidence of due care. However,
it is not conclusive. Plaintiff may present expert testimony that the prevailing
professional practice is itself unreasonable and constitutes negligence.
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