Liability for Bad Blood in Louisiana

1
Liability for Bad Blood in Louisiana

• Edward P. Richards
• Director, Program in Law, Science, and Public
  Health
• Harvey A. Peltier Professor of Law
• Louisiana State University Law Center
• Baton Rouge, LA 70803-1000
• richards_at_lsu.edu
• http//biotech.law.lsu.edu

2
Hepatitis C

• Remember non-A/non-B hepatitis?
• Another variant was characterized in the 1990s
• Hepatitis C
• Liver disease
• General debility
• Spread by transfusions
• Long latency - can show up 30 years later

3
Other Modes of Transmission for Hepatitis C (and
B)

• sharing and equipment used to inject drugs
• unsterile tattooing, body piercing and skin
  penetration procedures
• household practices (such as sharing razor blades
  and toothbrushes)
• occupational procedures (eg, needlestick and
  sharps injuries)
• certain sexual activities
• mother to baby.

4
What are the Scientific Issues in a Hepatitis C
Claim?

• How can it be negligent to fail to prevent an
  unknown disease?
• When did the standard for screening blood change?
• Is hepatitis C affecting the same people as
  hepatitis B?

5
What are the Legal Issues in a Hepatitis C Claim?

• Before the blood shield law?
• SOL or prescription?
• Discovery rule?
• What is the state had not adopted products
  liability then?
• Post-blood shield?
• Post-MMA?

6
The Future for Hepatitis

• Good vaccine for hepatitis A B
• Now required for kids, not just "persons at risk"
• In the long term, both will decline dramatically
  in the community
• No vaccine for C yet, no good data on prevalence
  or other risk factors
• There is a D, but seems to be limited to
  co-infection with B
• E, F, G...???

7
Key Cases

• This discussion is based on the controlling case
  law as of 10 Nov 2009
• David v. Our Lady of the Lake Hospital, Inc., 849
  So.2d 38 (La. 2003)
• Day v. Morehouse General Hospital, 865 So.2d 924
  (La.App. 2004)
• As with all legal analysis, this may be changed
  by subsequent legislation or court decisions

8
Background

• In the 1960s, states started applying contract
  notions of warranties to create a type of
  non-negligence based fault for injuries caused by
  products
• The Restatement of Torts 2nd, section 402a,
  introduced the notion of strict liability for
  injuries caused by defective products
• The LA SC did not accept strict liability until
  1971
• Weber v. Fidelity Cas. Co. of N.Y., 259 La.
  599, 250 So. 2d 754 (1971)

9
First LA Blood Shield Law - 1764 (1968)

• Notwithstanding the provisions of Section A.2. of
  this Article, the implied warranties of
  merchantability and fitness shall not be
  applicable to a contract for the sale of human
  blood, blood plasma or other human tissue or
  organs from a blood bank or reservoir of such
  other tissues or organs. Such blood, blood plasma
  or tissue or organs shall not for the purposes of
  this Article be considered commodities subject to
  sale or barter but shall be considered as medical
  services.

10
First LA Blood Shield Law - 1764

• What does the legislative intent seem to be?
• Why didn't the law include products liability
  claims?
• What should the effect of this be on a 402a
  strict liability claim?

11
Construction of 1764

• This blood-shield statute withstood
  constitutional challenges in appellate courts of
  three circuits
• Juneau v. Interstate Blood Bank, Inc. of
  Louisiana, 333 So.2d 354 (La.App. 3 Cir.), writ
  denied, 337 So.2d 220 (La. 1976)
• Koppenol v. St. Tammany Parish Hospital, 341
  So.2d 1242 (La.App. 1 Cir.), writ denied, 343
  So.2d 1067 (La. 1977) and
• Adams v. New Orleans Blood-Bank, Inc., 343 So.2d
  363 (La.App. 4 Cir. 1977).
• The first circuit noted that by the late 1970's,
  47 states had adopted similar statutes and in
  each instance where constitutionality was
  challenged the statute was upheld. See, Koppenol,
  341 So.2d at 1245.

12
Does 1764 Apply to Strict Liability?

• Juneau, 333 So.2d at 358
• (in enacting Article 1764(B) the legislature
  intended for the furnishing of blood to be
  considered a service for all purposes, not just
  for the warranty of fitness in a sale)
• Koppenol, 341 So.2d at 1245
• (the legislature considered and weighed the
  necessity and need for blood against the risk of
  contracting hepatitis and concluded the need
  outweighed the risk the legislature saw fit in
  Article 1764(B) to exclude this type of injury
  from the application of warranty (express and
  implied) and from strict liability, as in
  RESTATEMENT (SECOND) OF TORTS 402A (1965)

13
What is the Policy?

• The court held that to permit the application of
  strict liability in these blood cases would
  instill in the medical profession fear of the use
  of blood until foolproof tests could be devised,
  an untenable result.
• The court cited with approval the provision in
  LSA-C.C. art. 1764(B) that blood is not a
  "commodity," but is a medical service, saying
  this "public policy statute" recognized the
  life-saving need for use of blood in some cases.

14
MMA - 1975
15
DeBattista v. Argonaut-Southwest Insurance
Company, 403 So.2d 26 (La. 1981)

• Court said that 1764 only applied to contractual
  warranties, not strict liability
• Why did it not mention strict liability?
• Justice Dennis, writing for the majority,
  concluded that blood contaminated with hepatitis
  virus is defective, i.e., unreasonably dangerous
  to normal use because the risks involved in
  receiving a transfusion of blood in this
  condition are greater than a reasonable consumer
  would expect.
• What about Comment K?

16
Legislative Response

• By Act 611 of 1981, a new civil code article
  designated as Article 2322.1, and by Act 331 of
  1981, a new section designated as LSA-R.S. 92797
  were enacted,
• providing that strict liability "shall not be
  applicable to physicians, hospitals ... or
  nonprofit community blood banks ... in the ...
  transfusion ... of human blood ... which results
  in transmission of viral diseases ...
  undetectable by appropriate medical and
  scientific laboratory tests."
• Both acts limited the effectiveness of the
  provisions to causes of action arising after the
  effective dates of the acts.

17
Branch v. Willis-Knighton Medical Center, 636
So.2d 211 (La. 1994)

• Transfusion was in 1976
• The majority in Branch held the three-year
  prescription provision in LSA-R.S. 95628 did not
  apply to "strict tort liability actions arising
  out of the sale of blood in a defective condition
  unreasonably dangerous to the user or consumer."
  Branch, 92-3086 at 7, 636 So.2d at 214.
• Justice Dennis reasoned the earmarks of the
  statute indicated the legislature intended to
  deal only with actions traditionally classified
  under the generally prevailing meaning of
  "medical malpractice."

18
Boutte v. Jefferson Parish Hospital Service
District No. 1, 759 So.2d 45 (La. 2000)

• The court's rationale was that Boutte differed
  because when that plaintiff's transfusions were
  administered, the MMA's definition of medical
  malpractice had been revised by La. Acts 1976,
  No. 183 to include
• "all legal responsibility of a health care
  provider arising from defects in blood." LSA-R.S.
  401299.41(8).
• Therefore, it was unnecessary to overrule Branch
  in order to find Boutte's cause of action was
  barred by the three-year prescription applicable
  to medical malpractice cases.

19
Williams v. Jackson Parish Hospital, 798 So.2d
921 (La. 2001)

• The divided court concluded that Branch correctly
  held all pre-1982 (pre-blood shield statutes)
  claims against hospitals in strict products
  liability arising out of defective blood
  transfusions (DeBattista claims) are not
  traditional medical malpractice claims and are
  not governed by LSA-R.S. 95628, but by LSA-C.C.
  art. 3492.
• Justice Knoll dissented ... she pointed out that
  the transfusion of blood is an integral part of
  the physician's care of the patient and the
  "sale" of blood cannot be dissected reasonably
  from treatment.

20
David v. Our Lady of the Lake Hospital, Inc., 849
So.2d 38 (La. 2003)
21
LSA-R.S. 95628

• A. No action for damages for injury or death
  against any ... hospital duly licensed under the
  laws of this state, whether based upon tort, or
  breach of contract, or otherwise, arising out of
  patient care shall be brought unless filed within
  one year from the date of the alleged act,
  omission, or neglect, or within one year from the
  date of discovery of the alleged act, omission,
  or neglect however, even as to claims filed
  within one year from the date of such discovery,
  in all events such claims must be filed at the
  latest within a period of three years from the
  date of the alleged act, omission, or neglect.

22
Plain Language Meaning

• "or otherwise, arising out of patient care"
• What is the significance of "or otherwise"?

23
Is Blood is Part of Patient Care?

• The language "tort ... arising out of patient
  care" clearly encompasses delictual actions based
  on strict liability for blood sold and used in
  transfusions.
• It is clear and well-established that strict
  liability is a legal theory which may form the
  basis of a tort action and, as such, is simply a
  subspecies of the fault recognized in LA. CIV.
  CODE ANN. art. 2315.
• Patients do not buy and sell blood as a pure
  commercial transaction rather, blood is bought
  and used as an integral part of the care afforded
  patients at the time of medical treatment.

24
What does the Court Tell the Dissenters?

• However harsh the application of LA.REV.STAT.
  ANN. 95628, mincing words and linguistic
  gymnastics should not be utilized to disregard
  the statutory language.
• Rather, litigants should seek redress from the
  Legislature to change the law.
• Has there ever been any doubt about the
  legislative intent?

25
The Ruling

• Accordingly, we hold plaintiff's claim of strict
  liability in tort for the transfusing of blood
  contaminated with hepatitis C filed against the
  private hospital, which was not a qualified
  health care provider at the time of the blood
  transfusion, is prescribed pursuant to the
  provisions of LSA-R.S. 95628.
• All previous holdings inconsistent with this
  holding are hereby overruled.

26
CALOGERO, Chief Justice, Dissents

• I see no reason, other than a court reconfigured
  in part and excluding one of the justices who was
  in the majority in Williams because recused in
  this case, for choosing to reconsider the reasons
  espoused in Williams, to which I continue to
  adhere. ... Recall that, as Williams held, the
  application of 95628 depends on whether the two
  restrictions set forth in this special
  prescription statute are met
• (1) the defendant must fall within one of the
  categories of enumerated providers, and
• (2) the claim asserted must meet the statutory,
  conduct-based standard, i.e., the action, whether
  in tort, in breach of contract, or otherwise,
  must arise out of patient care.
• It is this second requirement which is the focus
  of the current dispute.

27
What is a Strict Liability Claim?

• A DeBattista claim is not an action arising from
  patient care instead, it is a strict products
  liability claim arising from the sale of a
  defective product, blood. Because the DeBattista
  claim is not a traditional medical malpractice
  claim, it is not the type of claim "based upon
  tort, breach of contract or otherwise, arising
  out of patient care" to which the prescriptive
  periods of La. Rev. Stat. 95628 are directed.
  Instead, such claims, to the extent that they are
  not now covered by La. Rev. Stat. 95628.1,
  should be governed by the general tort
  prescriptive periods found in La. Civ. Code art.
  3492.
• Accordingly, in my view, the Williams court
  correctly overruled Boutte, and today's majority
  errs in overruling Williams.

28
JOHNSON, J., Dissenting.

• In the instant case, Our Lady of the Lake
  Hospital was not a "qualified health care
  provider" at the time of plaintiff's blood
  transfusion under either the private or public
  Medical Malpractice Acts. It did not pay any
  premiums on a policy of insurance under either
  Act. Therefore, the general rules of tort law,
  including prescription, should apply.
  Accordingly, Our Lady of the Lake Hospital should
  not be allowed to avail itself of the
  prescriptive period provided for in La. R.S.
  95628.

29
What is the Right Policy?

• What would be the impact of allowing these
  claims?
• What would be the prospective effect?
• What would you tell hospital and blood bank
  clients if such claims were allowed?
• Is there any question about legislative policy?
• Should that matter to the court?

30
Day v. Morehouse General Hospital, 865 So.2d 924
(La.App. 2004)

• A question of symmetry in retrospective
  application of laws
• Strict liability was not recognized in LA when
  the patient received the transfusion (1967)
• The blood shield law used by the court was not in
  effect in either
• Should plaintiff be able to make a strict
  liability claim 30 years later but not be subject
  to the blood shield law in effect at the time?