Advincula v. United Blood Services

JUSTICE NICKELS, specially concurring:

I agree that compliance with professional rules or industry standards is evidence of the standard of care, but not conclusive of it. I further agree that plaintiff’s survival action is timely because it was brought within two years of the decedent’s discovery that the injury was wrongfully caused. However, I disagree with the majority’s analysis and conclusion concerning the standard of care articulated in the Blood and Organ Transaction Liability Act (the Act) (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 5101 et seq.). Therefore, I cannot join in the opinion of the majority.

Section 3 of the Act, entitled "Imposition of Liability,” provides:

"Every person, firm, or corporation involved in the rendition of any of the services described in Section 2 warrants to the person, firm or corporation receiving the service and to the ultimate recipient that he has exercised due care and followed professional standards of care in providing the service according to the current state of the medical arts ***.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 111 1/2, par. 5103.

After a labored exercise in etymology, the majority concludes that the Act requires a blood bank’s conduct be measured against a professional standard of care. Faced with the statutory language imposing a due care standard, the majority adroitly reasons that "a blood bank’s conduct is to be measured against 'professional standards of care’ while the bank is bound to exercise care which is due.” 176 Ill. 2d at 25. Quite simply, this strained interpretation is supported neither by traditional common law principles nor by the language contained in the Act.

The majority’s reading of the Act squeezes all potential liability into a cause of action based on the negligent rendition of medical services by a physician. However, the Act plainly applies to "every person, firm or corporation” involved in blood banking activities. The Act therefore imposes a warranty not only on blood bank physicians, but also on the corporation itself and every other employee. As the corporation itself and many of its employees are not physicians, their conduct may not be judged by a professional standard of care.

The Act by its terms imposes two warranties on those involved in providing blood banking services. First, the Act imposes a warranty of "due care.” Second, the Act imposes a warranty that "professional standards of care” were followed in the rendition of the blood banking services. I submit that the reason that the Act imposes these two warranties is to simply require "due care” by those who are not physicians and a "professional standard of care” by those who are physicians. For example, if plaintiffs theory is that the manager of the firm or corporation engaged in blood banking activities hires unqualified personnel or inadequately trains or supervises them, there is no medical judgment involved and the due care standard articulated in the Act logically applies. Similarly, if a plaintiffs theory is that an employee not under the control of a physician improperly stores, labels, or transports the blood products, the due care standard articulated in the Act also logically applies because liability is not premised on a theory of medical malpractice by a physician. In contrast, if a plaintiffs theory is that the physician in charge of the technical and scientific operation of the blood bank made a negligent medical decision, then the professional standard of care applies. Of course, a blood bank may then be held liable on the theory of vicarious liability for the negligent acts of its employees.

Such an interpretation is consistent with traditional common law principles applicable to physicians and hospitals. At common law, a hospital may be held liable for the failure to exercise due care. In such cases liability is not predicated on medical judgments, but on the hospital’s failure to exercise due care in the selection of staff (Dayan v. Wood River Township Hospital, 18 Ill. App. 2d 263, 268 (1958); Northern Trust Co. v. Louis A. Weiss Memorial Hospital, 143 Ill. App. 3d 479, 486 (1986)); or failure to exercise due care in the administration of its rules and regulations (Johnson v. St. Bernard Hospital, 79 Ill. App. 3d 709, 718 (1979)); or failure to exercise due care in its managerial responsibilities to review and supervise treatment (Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326 (1965)). In contrast, a physician’s conduct is judged based on a professional standard of care. Purtill v. Hess, 111 Ill. 2d 229, 241-42 (1986). The Act is consistent with these common law principles in articulating both a professional standard of care and an ordinary due care standard.

The majority justifies its rejection of these common law principles because of the need to protect medical judgments. 176 Ill. 2d at 32. However, the protection of these medical judgments is clearly accomplished by imposing a professional standard of care in those cases where plaintiffs theory involves professional negligence by a physician. However, I can discern no reason why a business person who runs a blood bank should be judged by a professional standard of care in a case involving negligent supervision or administration of blood banking services. Furthermore, where an employee of the blood bank mistakenly labels or stores blood, what medical judgments are sought to be protected? As these defendants are not physicians, there is no reason to apply a professional standard of care to their actions.

The majority also claims that "the term 'due care’ cannot be construed to indicate a reasonableness standard of care without creating surplusage within section 3.” 176 Ill. 2d at 25-26. The majority reasons that "[i]f the legislature intended that merely a reasonableness standard of care apply, there was no need to include the term 'followed professional standards of care.’ ” 176 Ill. 2d at 26. However, it is the majority’s selective reading of the statute that creates surplusage. If the legislature had intended that only a professional standard of care apply, then it need not mention due care at all. A far more reasonable reading of the statute is that it imposes two warranties, a professional standard of care for liability based on a physician’s conduct and a due care standard for those who are not physicians.

The majority reasons that the legislature must have intended to change the common law because the legislature did not merely end the application of principles of strict products liability to blood in section 2, but went on to impose a particular form of statutory liability in section 3. According to the majority, if the purpose of the Act was to end application of strict liability while leaving traditional negligence principles intact, then "there was no need for the legislature to go beyond section 2 in crafting a specific statutory liability for blood service providers; existing common law negligence standards of care would have sufficed.” 176 Ill. 2d at 21.

The majority fails to recognize that section 3 changed the common law in two important ways. First, unlike an action for products liability where privity is not required, common law actions for medical malpractice generally require a physician-patient relationship in order to impose liability. Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 531 (1987) ("a plaintiff cannot maintain a medical malpractice action absent a direct physician-patient relationship between the doctor and plaintiff or a special relationship”). Thus, one purpose of the express warranty contained in section 3 was to prevent any argument that a blood bank physician had no professional duty to an ultimate recipient of blood products.

The second reason for the inclusion of section 3 is that the existing common law standard of care for physicians was changed by the inclusion of the language "in providing service according to the current state of the medical arts.” This language is an explicit rejection of the common law "locality rule” that traditionally governs the standard of care for physicians in medical malpractice actions. The locality rule "requires a physician to possess and to apply that degree of knowledge, skill, and care which a reasonably well-qualified physician in the same or similar community would bring to a similar case under similar circumstances.” (Emphasis added.) Purtill, 111 Ill. 2d at 242 . In recognition of the national scope of blood banking and the need for the utmost care to insure the safety of the blood supply, the Act rejects the locality rule and instead requires a blood bank physician to practice in accordance with the state of the art. For this reason, an expert testifying to the professional standard of care for a physician involved in blood banking must have knowledge of the state of the art, not merely what is the standard for the geographic area in which the defendant physician practices.

Although I disagree with the majority’s analysis and conclusion concerning the standard of care articulated in the Act, I agree with the judgment. The trial court instructed the jury that the defendant blood bank had a duty to use "due care” and further defined "due care” as that degree of care "that would be used by reasonably careful blood banks under circumstances similar to those shown by the evidence.” Cf. Illinois Pattern Jury Instructions, Civil, No. 105.03.01 (3d ed. 1990). Such an instruction is appropriate where plaintiff’s theory is based on a defendant blood bank’s institutional negligence. However, the jury was further instructed that in making this determination it could consider "the knowledge and methods available at and prior to February 1984 to educate and screen donors and test blood” and "the practices and procedures of the blood banking industry for screening donors and testing blood.” The appropriate manner of screening of donors and testing blood is a medical decision made by the physician who is the medical director of a blood bank. See 210 ILCS 25/2 — 125, 7 — 108(a) (West 1994). Thus, the trial court was in error in applying an ordinary due care standard to a theory of professional negligence. Furthermore, appropriate expert testimony was required in order to inform the jury concerning the current state of the medical art of blood banking at the time in question in order to establish the standard of care. For these reasons, I concur in the judgment only.