The opinion
JUSTICE DiVITO, specially concurring:
Between the extremes of affirmance and reversal favored by my colleagues, my preference is to remand for application of the two-step approach outlined below. Nevertheless, mindful of the need to resolve the issue and of our certification of the case to the supreme court, I opt to concur in the judgment of affirmance. I do so because I believe that the opinion’s analysis of the Blood Liability Act and its application of case law precedent are defensible. I write separately, however, to suggest that a different standard of care is preferable in cases of this type.
We deal here with a negligence claim based on a blood bank’s failure to properly screen blood donors and to properly test donated blood for the causative agent of the AIDS virus. As UBS notes, blood banking is a recognized medical specialty, with its own board certification and professional organizations. Moreover, acquiring, preparing and safeguarding human blood for use in medical transfusion requires the exercise of medical and scientific expertise by health care professionals during both the donor screening and blood testing stages of the process. UBS performed all of its donor screening, blood testing, and other blood banking activities under the direction and supervision of its medical director, who is a physician. Any negligence by UBS in performing those operations occurred only by reason of the action or inaction of its officers and employees functioning as health care professionals.
The Blood Liability Act states that blood banks warrant to have "followed professional standards of care in providing the service according to the current state of the medical arts.” (745 ILCS 40/3 (West 1992).) Standing alone, this language creates a standard such as that found in medical malpractice cases. (See Walski v. Tiesenga (1978), 72 Ill. 2d 249 , 381 N.E.2d 279 .) Indeed, there is no direct language in the statute which would indicate anything to the contrary. Thus, there is considerable merit in UBS’ argument that the Blood Liability Act was intended to subject blood banks to a professional, medical standard of care.
Nevertheless, UBS’ argument that professional standards must be the sole criterion for determining the standard of care under the Blood Liability Act must ultimately fail. The Act states that in addition to professional standards, blood banks also warrant to have exercised "due care.” As the majority opinion correctly notes, the plain meaning of this language is that blood banks are required both to follow professional standards and to exercise due care. Furthermore, as plaintiff points out, UBS’ argument that the standard of care should consist exclusively of professional standards would simply render the term "due care” superfluous, in violation of principles of statutory construction. (People v. Figures (1991), 216 Ill. App. 3d 398, 401 , 576 N.E.2d 1089, 1092 ; Roser v. Anderson (1991), 222 Ill. App. 3d 1071, 1080 , 584 N.E.2d 865, 869 .) The plain wording of the statute must govern here; the majority is correct that effect must be given to the term "due care.”
In reaching its conclusion here, the majority relies on Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326 , 211 N.E.2d 253 , cert. denied (1966), 383 U.S. 946 , 16 L. Ed. 2d 209 , 86 S. Ct. 1204 . There, the defendant hospital argued that its duty of care was to be determined by "the care customarily offered by hospitals generally in its community.” (Darling, 33 Ill. 2d at 331 , 211 N.E.2d at 257 .) The supreme court agreed that custom is relevant in determining the standard of care, but determined that it should never be conclusive on the issue.
The majority holds, in applying Darling, that professional standards are relevant, but serve as simply one factor in determining a blood bank’s liability under a general due care analysis. The majority thus concludes that the jury properly concluded that professional standards were inadequate and that the evidence justified a finding of lack of care. As indicated earlier, I believe this holding is defensible.
I note, however, that in endeavoring to incorporate "due care” and the "professional standards” language into the Blood Liability Act’s overall standard of care, the majority states that "if professional standards are not sufficient to constitute due care, blood banks are required to take measures beyond those followed by the profession in order to meet the standard of care” (274 Ill. App. 3d at 581), and that "if professional standards did not meet the requirement of due care, UBS was required to exceed those standards” (274 Ill. App. 3d at 584). By this language, the majority suggests a two-part test: the first part would require an examination of the professional standards of the blood banking industry and a blood bank’s adherence to those standards; the second part would require a general due care analysis and would be reached only if the industry standards were found deficient. Thus, meeting professional standards raises a rebut-table presumption that due care has been satisfied; that presumption could be rebutted by showing that the professional standards were deficient.
Although the majority rationale suggests a two-part test, it does not mandate it. Here, the jury was not informed of such a test and it was given no guidance in applying it. For that reason, I would remand the case for retrial under the two-step standard.
I believe that this two-part approach is preferable. It strikes a better balance between the competing concerns of protecting blood banks and, at the same time, ensures that they are held liable for truly negligent behavior. The majority’s approach "swallows up” the professional standards language in a general due care analysis. The two-part test, on the other hand, more accurately reflects the equal footing of the two phrases "due care” and "professional standards of care” found in the Blood Liability Act. A similar two-part approach is used in other jurisdictions. United Blood Services, a Division of Blood Systems, Inc. v. Quintana (Colo. 1992), 827 P.2d 509, 523-24 ; Brown v. United Blood Services (1993), 109 Nev. 758 , 766 n.5, 766-67, 858 P.2d 391 , 396 n.5, 396-97.