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NELSON v. AMERICAN NATL.

March 11, 1993

JAMES D. NELSON, JR., as Son of JAMES D. NELSON, SR., and as Personal Representative of the Estate of JAMES D. NELSON, SR., Deceased, Plaintiff,
v.
AMERICAN NATIONAL RED CROSS, et al., Defendants.



The opinion of the court was delivered by: THOMAS PENFIELD JACKSON

 On February 8, 1985, James Nelson, Sr., a 58-year old florist, underwent an elective splenectomy at Georgetown University Hospital ("Georgetown") in Washington, D.C. to correct a bleeding disorder of the skin and mucous membranes. When he hemorrhaged postoperatively, his blood loss was replaced with multiple units of blood and blood products obtained by the hospital from the blood bank operated by the District of Columbia chapter of the American National Red Cross. One of the units was later learned to have been contaminated with the human immunodeficiency virus ("HIV").

 On March 15, 1991, Nelson died of acquired immunodeficiency syndrome ("AIDS") at John Hopkins Hospital, Baltimore, Maryland, the disease having been derived from the transfusion he had received at Georgetown six years earlier.

 On March 9, 1992, Nelson's son, as personal representative of his father's estate, brought the instant action against the American National Red Cross, its local affiliate, and Georgetown University Hospital, as the suppliers of the tainted blood, under the District of Columbia's Wrongful Death Act and its Survival Statute, to recover damages resulting from the events culminating in his father's death.

 Plaintiff contends that, although the ELISA test to detect directly the presence of HIV antibodies in blood did not become available until March, 1985, both the risk of contracting AIDS through blood transfusions, and simple if less efficacious modalities of blood-donor screening and alternative treatments for Nelson's condition, had been well known to the American Red Cross and Georgetown for several years prior to February, 1985, and that each in its own way had therefore been negligent in failing to employ them to avert that risk in Nelson's case.

 The defendants have moved to dismiss the complaint or for summary judgment, on limitations grounds. They assert that any action to recover for their alleged negligence expired, at the latest, in October, 1989, three years after Nelson learned that he had been "injured" (i.e., infected), even giving plaintiff the benefit of the so-called "discovery rule." Plaintiff responds that, if it is "injury" to a victim that starts the statute running, then Nelson's injury did not occur until AIDS overtook him in 1990. Moreover, even if Nelson is deemed to have been actionably "injured" when he received the tainted blood, and the statute commenced to run when he learned of it some months later, Nelson did not have -- and may never have had -- the knowledge essential to put him on notice that his time within which to make a claim for it was limited, namely, as the D.C. Court of Appeals has put it in one case, "some evidence of wrongdoing" on the part of the prospective defendants. Bussineau v. President & Directors of Georgetown College, 518 A.2d 423, 435 (D.C. 1986).

 I.

 The record before the Court establishes that, in early fall of 1986, some 19 months after Nelson's operation, the local chapter of the Red Cross informed Nelson's physician at Georgetown that the donor of one of the units of blood with which Nelson had been transfused in February, 1985, had subsequently tested positive for the HIV antibody. The physician in turn notified Nelson, who met in person with the doctor on October 3rd, was tested himself, and told on October 10th that he, too, had tested HIV positive.

 Nelson was not expressly told, to be sure, that anyone had been at fault; but then neither was he encouraged to believe that what had happened was unpreventable: an Act of God; an "accident;" or mere misfortune.

 In April, 1987, Nelson began to exhibit the first symptoms of AIDS-related complex -- enlarged lymph nodes, and a T-4 cell count decline -- which the doctor explained to him as being the beginning of the progression of his infection to AIDS. By the spring of 1990 Nelson had developed AIDS, and many of its related debilities, and he died, aged 64, of an AIDS encephalopathy on March 15, 1991. (Deposition of Ronald A. Sacher, M.D. of October 29, 1992, and exhibits to the Memoranda of Law).

 II.

 The District of Columbia Survival Statute, D.C. Code § 16-2701 (1981) saves an extant right of action "in whose favor it has accrued for any cause" for posthumous enforcement by a decedent's estate. If the "cause" is a personal injury done to the decedent while he was alive, the "right of action" is governed for limitations purposes by D.C. Code § 12-301(8) (1981), which provides that such actions "may not be brought after the expiration of [three years] from the time the right to maintain the action accrues." Estate of Chappelle v. Sanders, 442 A.2d 157, 158 (D.C. 1982). Under controlling District of Columbia precedents the right to maintain an action for injury to the person "accrues" when "injury result[s]" from a prospective defendant's wrongful conduct. See Hanna v. Fletcher, 97 U.S. App. D.C. 310, 231 F.2d 469, 472 (D.C. Cir.), cert. denied, 351 U.S. 989 (1956). But when "the fact of injury [is] not readily apparent and . . . might not become apparent for several years after the incident causing injury has occurred," Ehrenhaft v. Malcolm Price, Inc., 483 A.2d 1192, 1201 (D.C. 1984), the District of Columbia courts follow the "discovery rule" by which the limitations period will not commence to run until the injury ought to be apparent, or "when the plaintiff knows or through the exercise of due diligence should have known of the injury." Burns v. Bell, 409 A.2d 614, 617 (D.C. 1979).

 Defendants concede that the elder Nelson, plaintiff's decedent, did not "know" of the contaminated transfusion immediately -- indeed, neither did they -- but they assert that in October, 1986, he learned all he needed to know about it in order to start the statutory period running. Yet he refrained for undisclosed reasons from commencing an action to recover for it even through the torment of his terminal illness and death more than four years later. Thus, they contend, his right to maintain ...


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