Advincula v. United Blood Services

JUSTICE MILLER, dissenting:

I do not agree with the majority’s interpretation of the statute, or with its determination that the plaintiff is entitled to another trial. In my view, the evidence in this case compels the conclusion that the defendant complied with the applicable standard of care. For these reasons, I respectfully dissent.

Section 3 of the Blood and Organ Transaction Liability Act provides:

"Every person, firm or corporation involved in the rendition of [blood] services *** 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 ***.” 745 ILCS 40/3 (West 1994).

The Act was passed in response to this court’s decision in Cunningham v. MacNeal Memorial Hospital, 47 Ill. 2d 443 (1970), which had held that whole blood is a product for purposes of strict liability. Section 2 of the Act states that the furnishing of blood for transfusions is a service rather than a sale. Section 3 of the Act, quoted above, provides the applicable standard of care that blood banks must meet in rendering this service. Clearly, the aim of the legislature was to impose a professional standard of care in these circumstances, and I would interpret the provision to effectuate that intent. The purpose of the Act would be defeated if something other than professional standards were to govern, and I agree with the defendant that no liability can exist under the Act if professional standards are complied with.

The majority opinion fails to reconcile the statutory language and in the end adopts an interpretation that is internally inconsistent. Along the way, the majority engages in what can only be characterized as a lengthy, confusing, and unnecessary analysis of common law negligence. At one point, the majority declares that the common law "is not contravened by construing section 3 to require application of a professional standard of care to blood banks” (176 Ill. 2d at 34), as if common law requirements were relevant to this inquiry. The statute, however, was expressly designed to alter the law in this area by providing a statutory definition of a blood bank’s duties; after all, the statute was originally written to overrule the holding in Cunningham that blood is a product for purposes of strict tort liability. The legislature certainly contravened that common law development.

The majority’s eventual resolution of the case is unclear, given the conflicting statements in the opinion regarding the meaning of the statutory language. Despite a lengthy discussion that seems to suggest that a blood bank’s conduct will be measured solely against a professional standard of care, the court concludes that "Section 3 simply does not indicate, nor does Illinois common law agree, that conforming to professional standards of care in all instances equates with due care” (176 Ill. 2d at 40), leaving open the possibility that a lay standard might govern.

I believe that the statute plainly requires the use of a professional standard of care. Applying a vague, undefined "due care” standard, not anchored to professional practices, leaves a defendant subject to potentially conflicting requirements, as this case demonstrates. Here, the jury was permitted to assess the defendant’s conduct against not only the prevailing practices of blood banks in February 1984, when the blood at issue here was donated, but also against a lay standard of what blood banks, in hindsight, could have been doing to halt the spread of AIDS.

This attempt to combine professional and lay standards is ultimately unworkable. Asking the jury to consider both professional and lay standards means that compliance with lay standards might be necessary even if the defendant’s conduct, as measured against professional standards, is not wanting. Here, the defendant presented evidence that professional standards did not call for surrogate testing in February 1984; the plaintiffs witnesses, however, believed that surrogate testing should have been used. If professional and lay standards impose inconsistent requirements, then a provider of services under the Act might be liable under one standard or another, no matter what it does, in plain contravention of the purpose of the statute.

As a final matter, I do not believe that invocation of a lay standard of care is justified in this case on the grounds, expressed in the majority opinion, that the standards of an entire profession might lag behind developments in society at large. Leaving aside for the moment the question whether use of a nonprofessional standard, even for that corrective purpose, is consistent with the terms of the Act, I find no evidence here that the practices of the blood banking profession were outmoded in February 1984. Of course, the statutory requirement that a provider of services under the Act exercise due care and follow professional standards of care "according to the current state of the medical arts” is broad enough to ensure that those who engage in the blood banking profession will not lag behind the medical arts.

The legislature intended for a professional standard of care to apply in this area. I would therefore interpret the language at issue here to mean that a blood bank must exercise a degree of care that is consistent with prevailing professional standards. Thus, a blood bank’s conduct will be measured against professional standards only, rather than the mixture of professional and lay standards proposed by the plaintiff and the courts below, and seemingly allowed by the majority opinion.

Under the record in this case, it seems clear that the defendant is entitled to summary judgment. The evidence indicates that the defendant was in compliance with all professional standards at the time relevant here. Although the plaintiff presented testimony suggesting that the defendant should have used surrogate testing, or other means, to screen its blood donations, virtually no blood bank in the nation was using those procedures at that time. Given this evidence, I would reverse the judgment entered in favor of the plaintiff and remand the action so that judgment may be entered in favor of the defendant.

JUSTICE HARRISON, also dissenting:

Finding ambiguity where none exists, the majority engages in an exhaustive discussion that is as unnecessary as it is confusing. Section 3 of the Blood and Organ Transaction Liability Act (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 5103) requires blood banks to "exercise[ ] due care and follow[ ] professional standards of care.” There is no reason to believe that this language means anything other than what it plainly says. Under the statute, compliance with professional standards of care is not sufficient. One must also exercise due care. The law could not be more straightforward.

Although the majority initially appears to reject this interpretation, it ultimately concedes that due care and compliance with professional standards are both required by the statute. The majority correctly notes that conformance with professional standards of care is indicative but not conclusive of due care. 176 Ill. 2d at 39. Even if professional standards have been met, a blood bank may still be liable if the standards themselves are deficient. That is precisely what the appellate court here held (274 Ill. App. 3d at 581-83), and it was the basis for the instructions given to the jury by the circuit court.

Why the majority nevertheless decides to reverse the lower courts’ judgments I cannot understand. The majority is obviously concerned that in applying the due care prong of the standard, juries should not judge blood banks according to some generalized lay standard of due care. As the appellate court pointed out, however, the trial court here avoided that error when it specifically instructed the jury that UBS was required to act in accordance with how a reasonably prudent blood bank would have conducted itself. 274 Ill. App. 3d at 583-84. Thus, contrary to what the majority states, the jury was never told it was free to disregard the expert testimony "and/or decide the reasonableness of UBS’s conduct based on the jury’s own knowledge as well.” 176 Ill. 2d at 40.

Formulating jury instructions for this case posed some obvious challenges. The criticism has been made that the appellate court’s instructions made compliance with professional standards subordinate to the obligation to exercise due care, but if compliance with professional standards is merely indicative and not conclusive of due care, as the majority holds (176 Ill. 2d at 39), I fail to see how else the instructions could have been drafted. The criteria for assessing jury instructions on review are simply whether, considered as a whole, they were clear enough that they did not mislead the jury and they fairly and accurately stated the applicable law. See Dabros v. Wang, 243 Ill. App. 3d 259, 267 (1993). The instructions here satisfied these criteria. I would therefore affirm.