The opinion of the court was delivered by: FLANNERY
This matter comes before the court on motions of defendants Georgetown University ("Georgetown") and The American Red Cross ("ARC") for Summary Judgment as to all remaining counts of plaintiffs' Amended Complaint. For the reasons set forth below, summary judgment on all counts is proper.
This action arose from the circumstances surrounding the birth of Matthew Kozup, the son of plaintiffs Stephen and Susan Kozup, and the brother of plaintiff Sarah Kozup. On December 26, 1982, Susan Kozup was admitted to the High Risk Obstetrical Unit of Georgetown University Hospital, when it appeared that delivery of her child would involve complications. On January 9, 1983, Mrs. Kozup went into labor. Matthew was born at 9:15 a.m. on January 10, 1983, and shortly thereafter, Georgetown began giving Matthew blood transfusions for hypovolemia, a condition associated with premature birth. Over the course of two days, January 12 and 13, Matthew received three transfusions which were contaminated with the virus now known to transmit Acquired Immune Deficiency Syndrome (AIDS). Plaintiffs' Amended Complaint, paras. 5-11.
Defendant ARC supplied the contaminated blood to Georgetown. According to ARC records, the blood had been donated in October, 1982, by an individual who subsequently developed AIDS, and died from opportunistic infections associated with the disease. At the time of his donation, however, the donor was in good health.
Plaintiffs allege that as a result of the transfusions Matthew received in the days immediately following his birth, he was permanently infected with AIDS. Because of this infection, plaintiffs allege, Matthew continually contracted numerous opportunistic infections over the three years of his life, causing neurological impairment and stunting his mental and physical development. Plaintiffs' Amended Complaint paras. 24-25. On July 10, 1986, Matthew died, allegedly from complications related to infection with the AIDS virus.
II. AIDS: A Medical Chronology
In order to resolve the pending motions for summary judgment, it is critical to understand exactly what was known about AIDS by the scientific and medical communities, and when. Much of plaintiffs' claim turns on allegations that defendants knew or should have known certain facts related to AIDS, and a chronology of research and information about AIDS is therefore a necessary foundation for any resolution by the court.
AIDS has been described as an impairment of the body's natural immune system of defense against disease that renders a person vulnerable to infections and various illnesses. Persons with AIDS are susceptible to contracting a number of diseases and opportunistic infections that would not be harmful to a person whose immune system was functioning properly. Hermann, AIDS: Malpractice and Transmission Liability, 58 U. Colo. L. Rev. 63-64 (Winter 1986-7). In June and July of 1981, the first few cases of what has since been termed Acquired Immune Deficiency Syndrome were diagnosed. Exhibits D-1, D-2 to ARC's Motion for Summary Judgment (30 Morbidity and Mortality Weekly Report 250-252, 305-308 (June 5, July 4, 1981) [hereinafter "MMWR"]). In these first few cases, patients developed an unusual form of skin cancer, Kaposi's sarcoma, or a type of pneumonia caused by the protozoan pneumocystis carinii. Id. As more cases began to be diagnosed, it appeared that AIDS was especially prevalent among certain groups, namely homosexual males, intravenous drug users, and recently immigrated Haitians.
In July, 1982, three cases of pneumocystis carinii pneumonia were diagnosed in hemophiliacs. Exhibit D-3 to ARC's Motion for Summary Judgment (31 MMWR 365-367 (July 16, 1982)). These cases, in patients who regularly received a clotting factor composed of blood products, raised the possibility that AIDS might be blood-borne. Accordingly, on July 27, 1982, an Open Meeting of the Public Health Service Committee on Opportunistic Infections in Patients with Hemophilia was held, which representatives of the ARC, the Center for Disease Control, the National Institutes of Health, the Food and Drug Administration, the American Association of Blood Bankers, the National Gay Task Force, and other blood banking and public health organizations attended. The Report of that meeting stated that AIDS had "characteristics which suggest an infectious etiology," and that a "possible mode of transmission is via blood products." Exhibit E-1 to ARC's Motion for Summary Judgment. No recommendations or conclusions were made at that meeting. Id.
In December, 1982, the Center for Disease Control reported a case of "Possible Transfusion-Associated AIDS - California." Exhibit D-5 to ARC's Motion for Summary Judgment (31 MMWR 652-654 (Dec. 10, 1982)). In that case, an infant received blood platelets under circumstances similar to those surrounding Matthew Kozup's birth, and subsequently was diagnosed as suffering from AIDS. The infant did not fit into any of the previously noted high risk categories for AIDS, and thus the transfusions he received became the focus of the medical community's attention.
In January, 1983 a Workgroup to Identify Opportunities for the Prevention of AIDS was convened, consisting of representatives of many of the same organizations that had attended the July, 1982 meeting on hemophilia and AIDS. The Summary Report of that meeting indicates that as of the date of the meeting, January 4, 1983, there were five reported cases of AIDS among hemophiliacs, one possible transfusion-related case, and five other cases related to blood products. Exhibit E-3 to ARC's Motion for Summary Judgment. At the meeting, a consensus was reached for the proposition that members of high risk groups for AIDS should somehow be excluded from donating blood. However, the Report indicates that "no consensus was reached as to the best method for doing this." Id.
The Workgroup addressed the possibility of screening out male homosexuals, but concluded that such a procedure would be "intrusive," "unethical," and might "institutionalize a stigma on groups already prone to prejudice and persecution." Id. Further, the Workgroup questioned whether such a procedure might prove effective, given the possibility that many potential donors would be reluctant to disclose that they were homosexual, or might themselves conclude that they were not at risk for contracting or carrying the disease. Id. For these reasons, no recommendations were made at the meeting as to how to screen out high risk donors. The Public Health Service Committee promised to issue recommendations as soon as possible thereafter.
On January 13, 1983, the ARC, the American Association of Blood Bankers, and the Council of Community Blood Banks issued a "Joint Statement on AIDS Related to Transfusion." Exhibit F-1 to ARC's Motion for Summary Judgment. The Joint Statement concluded that "evidence [was] inconclusive" as to the hypothesis that AIDS was transmissible by blood. Id. The hypothesis was referred to as a "possibility, still unproven." Id. The Joint Statement recommended that hospitals consider making autologous transfusions more readily available, especially for those undergoing elective surgery. It further recommended more thorough screening for symptoms of AIDS in potential donors. However, the Joint Statement did not recommend any laboratory screening tests, nor did it recommend that donors be screened on the basis of their sexual preference. Id. Finally, the Joint Statement noted the statistic that, while some 10,000,000 transfusions had been performed in 1982, only 10 of the approximately 800 AIDS cases that had been diagnosed as of that date were possibly blood-related.
On March 4, 1983, the Public Health Service Committee issued its promised recommendations for donor screening, which paralleled those issued weeks later by the Bureau of Biologics ("BoB") of the Food and Drug Administration. Both recommended that, prior to donating blood, donors be given pamphlets describing high risk groups, so that they could self-screen based on the information in the pamphlets. Exhibit E-4 to ARC's Motion for Summary Judgment; Eckert, AIDS and the Blood Bankers, Regulation, Sept.-Oct. 1986 at 18-19. The BoB recommended improved educational programs for blood bank personnel, so that they could better assist donors in recognizing the symptoms of AIDS. Exhibit E-5 to ARC's Motion for Summary Judgment. Neither recommended use of surrogate tests. These guidelines were promptly implemented by the ARC. ARC Memorandum at 15.
It was not until 1984 that the medical community reached a consensus as to the proposition that AIDS was transmissible by blood. Curran, Lawrence, et al., Acquired Immune Deficiency Syndrome (AIDS) Associated with Transfusions, 310 New Eng. J. Med. 69, 70 (1984); AIDS Transmission via Transfusion Therapy, 8368 The Lancet 102 (Jan. 14, 1984), cited in Hospital and Blood Bank Liability to Patients Who Contract AIDS Through Blood Tarnsfusions, 23 San Diego L. Rev. 875, 878 & n. 10.
In April, 1984, scientists identified the virus HTLV-III as the cause of AIDS. Fischinger, Acquired Immune Deficiency Syndrome: The Causative Agent and the Evolving Perspective, 9 Current Problems in Cancer 4 (1985); Perspectives on the Future of AIDS, 253 J. Am. Med. A. 247 (1985), cited in 23 San Diego L. Rev. 875, 879 & n. 19, 20. By May, 1985, an enzyme-linked immunosorbent assay (ELISA) test was made available, which screens for the antibodies sensitive to HTLV-III. Hermann, AIDS: Malpractice and Transmission Liability, 58 U. Colo. L. Rev. at 77. Once it was available, the Center for Disease Control issued guidelines for implementing the ELISA test. Id., citing Professional Public Health Service Interagency Recommendations for Screening Donated Blood and Plasma for Antibody to the Virus Causing AIDS, 34 MMWR 1 (1985). This laboratory test has proven 98.6% effective in detecting exposure to AIDS. Comment, Transfusion-Associated Immunodeficiency Syndrome (AIDS): Blood Bank Liability?, 16 U. Balt. L. Rev. 81, 86 & n.36. When coupled with a second test, the Western Blot Analysis, the rate of detection for exposure to AIDS rises to 100%. Id. at n.37. There is still no test for presence of the virus itself, nor is there a cure for the disease.
With this chronology in mind, the court can now turn to the various theories of liability presented by plaintiffs.
III. Informed Consent and Battery
Plaintiffs allege that on January 12, 1983, defendants Georgetown and the ARC knew or should have known that contracting AIDS from blood was a material risk of transfusion, and that failure to inform Matthew's parents of this risk constituted negligence. Plaintiffs' Amended Complaint, Count II. Lack of informed consent as a basis for negligence lies primarily against defendant Georgetown, as the party in direct communication with plaintiffs, although plaintiffs have alleged this as a theory of liability against both defendants.
In order for defendants to prevail on this issue on a motion for summary judgment, they must show that there is no genuine issue of material fact as to the elements of an action for lack of informed consent. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986) (summary judgment standard must be read in conjunction with substantive law of cause of action alleged). Those elements are set forth in the leading case of Canterbury v. Spence, 150 U.S. App. D.C. 263, 464 F.2d 772 (D.C. Cir. 1972).
In Canterbury, plaintiff was a patient who underwent surgery for back pain, without being told by his physician that surgery entailed a 1% risk of paralysis. The United States Court of Appeals for the District of Columbia Circuit held that a directed verdict for defendant was not proper on the evidence. The court set forth fully the elements of and rationale for liability under a theory of lack of informed consent, and held that in order to prevail on this theory, a plaintiff must show that there was a material risk associated with his or her treatment which plaintiff's physician failed to disclose and which, if disclosed, would have caused plaintiff to decline that course of treatment which resulted in plaintiff's injury. 464 F.2d at 790. Two of these elements present problems for plaintiffs in this action.
First, the Canterbury court held that the risk involved in a patient's treatment must be material. The court declined to define materiality in wholly subjective terms, instead holding that a risk is material:
when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding ...