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SMITH v. AMERICAN RED CROSS

December 16, 1994

AARON J. SMITH, ADMINISTRATOR OF THE ESTATE OF SALLIE R. SMITH, DECEASED, PLAINTIFF
v.
AMERICAN RED CROSS; KEYSTONE COMMUNITY BLOOD BANK, INC.; THE READING HOSPITAL AND MEDICAL CENTER, DEFENDANT



The opinion of the court was delivered by: RONALD L. BUCKWALTER

 BUCKWALTER, J.

 December 16, 1994

 I. INTRODUCTION

 Plaintiff asks this court to use the unfortunate and tragic facts of this case to extend Pennsylvania's "separate disease rule," *fn1" promulgated in the context of asbestos litigation, to cases involving Human Immunodeficiency Virus ("HIV") and Acquired Immune Deficiency Syndrome ("AIDS"). To so extend the separate disease rule would permit HIV and AIDS to be treated as separate and distinct diseases, each standing as an independent cause of action and each triggering a new statute of limitation. Although the Pennsylvania Supreme Court has not ruled on this question, basing my decision on the reasoning of prior related rulings, I do not believe that it will extend the separate disease rule to the type of case presently before this court.

 In the present case, defendants American Red Cross ("Red Cross") and the Reading Hospital and Medical Center ("Reading Hospital"), have filed Motions for Summary Judgment pursuant to Fed.R.Civ.P. 56 on the ground that plaintiff's action is barred under the applicable Pennsylvania statutes of limitation. In addition, plaintiff seeks Leave to Amend his complaint. This court has jurisdiction pursuant to 36 U.S.C. § 2. For the reasons outlined below, defendants' Motions are granted and that of plaintiff is denied.

 II. BACKGROUND

 In January 1984 Sallie Smith underwent coronary artery bypass surgery at the Reading Hospital during which she received a blood product provided by the Red Cross. Dr. Marc R. Filstein, Medical Director of the Reading Hospital and Medical Center Blood Bank, in a letter dated January 27, 1987, advised Dr. Thomas Stewart, Sallie Smith's primary care physician, that Sallie Smith had been transfused with a blood product of a donor who subsequently tested HIV positive.

 On February 10, 1987, during an office visit, Dr. Stewart advised Sallie Smith and her husband, Aaron Smith, that she could have been infected with the HIV virus during the surgery. Stewart Dep. at 14. Dr. Stewart provided the Smiths with details about the disease, *fn2" gave them a handout on AIDS and arranged for HIV testing at Reading Hospital. Id.

 Dr. Stewart received Sallie Smith's positive test result sometime between February 10, 1987 and March 23, 1987, the day on which he informed the Smiths of the results. Aaron Smith did not test positive. Dr. Stewart informed the Smiths that Sallie Smith would develop AIDS as a result of her HIV infection, there was no cure and she would ultimately die from it. Stewart Dep. at 14-16. Dr. Stewart also reviewed blood and body fluid precautions *fn3" with the Smiths and told them that Sallie Smith would have to be monitored closely and treated with medications as needed to combat opportunistic diseases. Id.

 Dr. Stewart treated Sallie Smith throughout her illness and monitored and documented the progression of the HIV infection. Until June 29, 1992, Dr. Stewart's progress notes referred to Sallie Smith and her condition alternatively as an "asymptomatic HIV individual" and "asymptomatic HIV infection." As of June 29, 1992 Sallie Smith's condition was referred to as "HIV with H-Zoster".

 Sallie Smith died on September 5, 1993. The Certificate of Death lists the cause of death as "Human Immunodeficiency Viral Infection."

 Aaron Smith filed the present action on October 3, 1993 alleging causes of action for negligence, strict liability, breach of warranties, survival action and wrongful death against defendants Red Cross, Keystone Community Blood Bank Inc., and Reading Hospital. Plaintiff also alleged a cause of action for informed consent battery against Reading Hospital. By stipulation of the parties, defendant Keystone Community Blood Bank, Inc. was dismissed without prejudice as a party to this action. In addition, this court granted the Motions to Dismiss claims based on strict liability and breach of implied ...


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