probably cause persons in that category to lie about their status, and might even cause persons with AIDS to deliberately retaliate against Red Cross by giving contaminated blood. The upshot was a combination of (1) attempting to exclude only on the basis of behaviors rather than status, and (2) a procedure enabling persons who had given blood to provide information in confidence which would result in making sure that their blood was not transfused. In the Penn-Jersey region, this "confidential unit exclusion" procedure took the form of a simple "call-back" procedure: donors were simply told that if, after giving blood, they had any questions, or doubts about the useability of their blood, they could telephone a specified Red Cross telephone number.
Throughout 1984, the donor instruction card used by the Penn Jersey Region identified the high-risk group for AIDS as "homosexual and bi-sexual males with multiple partners (more than one)". As of December 14, 1984, however, the FDA recommendations on the subject were changed, to define that high-risk group as homosexual and bisexual males having more than one partner at any time since 1979. The earlier donor card did not mention AIDS by name; and the instructional pamphlet informed prospective donors that AIDS could be contracted through sexual contact and "possibly" blood transfusions.
Unfortunately, at the time Donor X made the fatal January 29, 1985 donation, the defendant was still using the old cards and instructions, in the apparent belief that there was no need to comply with the December 14, 1984 amended recommendations until the existing supply of old literature had been exhausted.
Thus, assuming Donor X read the literature and accompanying documentation, he was informed that the high-risk group included homosexual males with multiple partners, rather than homosexual males who had had more than one sexual partner since 1979. Since Donor X had had no sexual partners at all for about 18 months, he was not aware of his high-risk group status.
Accordingly, if the appropriate standard of care is that applicable specifically to blood banks, the defendant violated that standard of care by not amending its procedures to conform to the December 14, 1984 FDA recommendation. If a more general standard of care is applicable, I conclude that, in addition to the failure to conform to the FDA recommendation, the defendant is properly chargeable with negligence for the unreasonable turgidity of its instructional materials. Given the then-prevailing state of medical knowledge, it seems obvious that the whole purpose of the screening procedure should have been to alert potential donors not to give blood if they were in a high-risk group for AIDS. Unfortunately, that crucial message was greatly diluted, and largely obscured, by being buried in the center of irrelevant textual material on other subjects. Moreover, although of no particular moment in this case because Donor X was a reasonably well-educated and sophisticated person (at least two years of college), the Red Cross brochure assumed a fairly high level of reading proficiency.
No useful purpose would be served, however, by further discussion of defendant's alleged shortcomings, because the evidence makes clear that, regardless of any negligence on the part of the defendant, such negligence did not cause plaintiff's injury. By the time Donor X made his second donation of blood in June 1985, all of the problems associated with defendant's conduct of the January 29 screening had been overcome: in June 1985, Donor X was correctly informed that the high-risk group included all male homosexuals who had had more than one sexual partner since 1979. And, although the brochure used in June 1985 is still arguably subject to criticism for requiring a rather high level of reading proficiency, it was plainly adequate to inform Donor X in all pertinent respects. But Donor X nevertheless continued in his belief that he was not a member of any high-risk group, and proceeded to donate blood. His perception that, since he had had no homosexual contact for more than 18 months, the warnings did not apply to him, remained unshaken. The only permissible conclusion, on this record, is that Donor X would not have been prevented from giving blood on January 29, 1985, even if the defendant had dotted all the "i's" and crossed all the "t's".
Plaintiffs' pleadings, and to some extent their evidence, support another possible basis upon which the Red Cross might be found negligent. Because HIV can be acquired and transmitted through injection with tainted needles, and because the use of tainted needles by drug addicts is much more prevalent in metropolitan areas than in other parts of the country, plaintiffs have argued that the Red Cross should have sought to exclude blood collected in center-city areas, as a precautionary measure, in order to reduce the likelihood that contaminated blood would be received. On the record in this case, however, any such argument must be rejected. In the first place, it is not at all clear that any such limitation would have been feasible, without crippling the nation's blood-supply. The Red Cross could not reasonably be found negligent for persisting in maintaining this vital resource. In the second place, and more important, Donor X was not a user of tainted needles. He gave blood in blood-drives conducted at his place of employment, the office of a major corporation. There is, in short, no arguable nexus between the defendants' creation of the alleged unreasonable risk of contamination from tainted needles and the harm which occurred in this case.
For the reasons set forth above, judgment will be entered in favor of the defendants American Red Cross and Penn-Jersey American Red Cross Regional Blood Services, and Dr. William C. Sherwood.
AND NOW, this day of November, 1993, it is ORDERED that:
Judgment is entered in favor of the defendants American Red Cross and Penn-Jersey American Red Cross Regional Blood Services and William C. Sherwood, M.D.; plaintiff's complaint is, as to those defendants, DISMISSED WITH PREJUDICE.
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