Before Schwelb, Farrell, and Washington, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Leonard Braman, Trial Judge)
The question presented is whether a division of this court may and should depart from the standard "more likely than not" test for proximate causation in this suit for negligence based on the defendant-appellee's alleged failure to screen blood donations adequately. Appellant, conceding that he cannot meet the standard test, urges us to "recognize loss of chance as a protected interest" and to apply that alternate test of causation to the Red Cross's alleged negligence in this case, in much the same way - he contends - as a division did in a prior medical malpractice case, Ferrell v. Rosenbaum, 691 A.2d 641 (D.C. 1997). We conclude that, in urging application of the loss of chance theory to the facts of this case, appellant presses the division's authority too far. The circumstances of Ferrell differ too markedly from these to provide authority for the departure appellant advocates. Because appellant's proffered evidence would fail the test of causation followed by our decisions, we affirm the trial court's grant of summary judgment in favor of the Red Cross.
In July 1982 Calvin Grant (hereafter "Grant" or "appellant"), then age twelve, underwent surgery at Children's Hospital in Washington, D.C. to repair a congenital heart defect. During the surgery he received five units of whole blood, which had been provided to Children's Hospital by appellee the American National Red Cross (the "Red Cross").
All of the five donors whose blood was used on Grant satisfied the blood screening requirements then utilized by the Red Cross. However, in compliance with the Red Cross's procedures at the time, none of the blood had been tested for alanine aminotransferase ("ALT") levels. In September 1993, after a liver biopsy, Grant was found to have the hepatitis C virus. He filed a complaint in the Superior Court charging the Red Cross with negligence in not having screened the blood administered to him during the 1982 surgery for ALT.*fn1 During the litigation, it was determined that one of the five donors of the donated blood had been positive for hepatitis C. At the Red Cross's request, blood samples from the positive donor and appellant were tested by means of DNA, and it was confirmed that appellant had been infected with the virus during the 1982 transfusion.
In 1982, when Grant underwent surgery, scientists and doctors were aware that besides hepatitis A and hepatitis B there was a form referred to as "non-A, non-B" (or "NANB") hepatitis. Although today scientists know that most NANB hepatitis is caused by the hepatitis C virus ("HCV"), that virus was not isolated until 1989, and the first test to screen blood for HCV antibodies was not available until 1990. In his suit Grant asserted, nonetheless, that the Red Cross should have tested all donor blood for ALT levels as a "surrogate test" for NANB hepatitis,*fn2 because blood containing elevated levels of ALT has an increased chance of carrying the NANB hepatitis virus. According to appellant, at the time of his surgery ALT testing could identify a significant portion (up to 40%) of the blood supply infected with the NANB hepatitis, and - he asserted - the Red Cross itself believed that ALT testing might prevent as many as a third of the expected serious cases of NANB hepatitis cases annually, yet made a "business" (or cost-benefit) decision to forgo the testing.
The Red Cross defended by asserting that in 1982, all of the available data and the practice of national blood suppliers counseled against routine screening by ALT donor testing. It proffered evidence that, according to the consensus of leading experts nationwide, ALT testing would not have detected approximately 70 percent of donors infected with the then-unknown viral agent HCV; that the same percentage of the donors excluded on the basis of ALT testing would have been healthy and not affected by that agent; and that as a result routine ALT testing would have annually excluded many thousands of units of healthy blood from donors not carrying hepatitis, while failing to detect the vast majority of donors carrying NANB hepatitis.
Grant responded by conceding that he could not prove by greater than 50% (more likely than not) that he would not have been infected even if ALT testing had been performed. Specifically, he admitted that his expert testimony would be able to establish no more than a 40 percent correlation between ALT levels and infection with the NANB hepatitis, in part because ALT levels fluctuate in individuals.*fn3 Grant argued nonetheless - as he does on appeal - that a jury should be allowed to decide whether the Red Cross's negligence in not screening for elevated ALT levels "depriv[ed] him of an opportunity to avoid" the infection he incurred even if that "opportunity" were measured at less than fifty-percent likelihood. Citing decisions of other courts that have applied the so-called "loss of chance" doctrine, he argued that it was "a jury question whether the Red Cross's negligent failure to test proximately caused Calvin Grant's injury by increasing his chances of getting NANB infected blood by at least 30%." The trial court, on the strength of decisions of this court cited by the Red Cross, concluded as a matter of law that Grant had failed to present triable issues of fact on both negligence and proximate causation. It therefore granted summary judgment to the Red Cross.
On review of summary judgment, this court applies the same standard of appraising the evidence as did the trial court. Drejza v. Vaccaro, 650 A.2d 1308, 1312 (D.C. 1994). Thus, we will affirm summary judgment if, taking all reasonable inferences in the light most favorable to the non-moving party, a jury could not reasonably find for it under the applicable burden of proof. Nader v. de Toledano, 408 A.2d 31, 42 (D.C. 1979). In this negligence action, Grant had the burden of proving both a breach of the standard of care by the Red Cross and a causal connection between the breach and his injury. E.g., District of Columbia v. Wilson, 721 A.2d 591, 597 (D.C. 1998). If the proof he offered failed on either score as a matter of law, summary judgment was proper. We do not reach the issue of whether Grant ...