CT: Patient Transfused - Blood Recall Next Day Failure to Notify Patient - Limitations Issue.

CASE FACTS: On March 2, 1985, the U. S. Food and Drug Administration (FDA) approved the enzyme-linked immunosorban assay test (ELISA) for the purpose of screening units of blood for antibodies associated with the human immunodeficiency virus (HIV). Ramon Kranwinkel, a pathologist and hematologist,

who, at all relevant times, was the director of the blood bank at Danbury Hospital, maintained that he had learned of the FDA's ratification of the ELISA test "sometime in 1985, earlier that year, probably around February, but [was] not sure of the exact date." On April 18, 1985, Dr. Dennis Ogelia, the patient's treating physician, admitted the patient to the hospital for treatment of congenital scoliosis. The next day, the patient underwent a posterior spinal fusion during which she received four units of blood. The blood was provided to the hospital' by the American Red Cross, and had an expiration date of April 22, 1985. The day after transfusion, Dr. Krenwinkel received notice that the blood had been recalled. He failed to notify the patient. The patient maintained that prior to her surgery she "did not know of the risk of contracting HIV from a blood transfusion" and that she was not informed of that risk. She "did not know that she had the option of banking her own blood for the surgery and that she was not told of that option. She "did not know that she was given untested blood." The patient brought suit for medical malpractice against the hospital nine years after the transfusion but shortly after learning of the problem with the blood. The Superior Court, Judicial District of Danbury, granted the hospital's motion for summary judgment on the grounds that the statue of limitations had run. The patient appealed.

COURT'S OPINION: The Supreme Court of Connecticut affirmed the judgment of the lower court in part and reversed it in part. The court held, inter alia, that there was a material issue of fact as to whether the statute of repose was tolled by the continuing course of conduct which precluded summary judgment for the hospital. The patient provided her own uncontroverted affidavit, in which she swore that "at no time did the defendant tell her that the ELISA test was available." The court was satisfied that the patient presented evidence of the defendant's continuing failure to inform the plaintiff: that the blood with which she was transfused had not been tested for the presence of HIV antibodies. The continuous failure to notify the patient was sufficient to create a genuine issue of material fact as to whether the defendant breached the ongoing duty of care to the patient. Sherwood v. Danbury Hosp., 746 A.2d 730 - CT (2000)

Meet the Editor & Publisher: A David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.