# Advincula v. United Blood Services > Appellate Court of Illinois · August 22, 1995 · 211 Ill. Dec. 182 URL: https://www.frixlaw.com/law-library/cases/9739700 ## Case - **Full name:** MARIETTA ADVINCULA, Indiv. and as Special Adm’r of the Estate of Ronaldo Advincula, Deceased, Plaintiff-Appellee, v. UNITED BLOOD SERVICES, Defendant-Appellant - **Court:** Appellate Court of Illinois - **Decided:** August 22, 1995 - **Citations:** 211 Ill. Dec. 182; 274 Ill. App. 3d 573; 654 N.E.2d 644 - **Precedential status:** Published - **Opinion:** Dissent by McCORMICK - **Judges:** DiVITO, McCORMICK, Scariano - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9739700 ## Opinion text JUSTICE McCORMICK, 7 dissenting: Today, in affirming the trial court’s jury instructions on the standard of care imposed by section 3, the majority misapplies the plain language of the statute and fails to implement the apparent intent of the Blood Liability Act, as stated in section 3. This results in a standard of care which, I fear, few professionals can meet. Therefore, I respectfully dissent. The undisputed evidence in this case showed that UBS was administered by medical personnel and that the same medical personnel developed its policies regarding transfusion of blood and implemented its response to the, in 1984, still new and little understood scourge of ADDS. Only in the months prior to the transfusion resulting in this lawsuit did health officials begin to suspect with any degree of certainty that our nation’s blood supply was a pipeline for the causal agent of ADDS (unknown at the time to be HIV, which was yet to be discovered). Indeed, at the CDC’s January 1983 meeting, at least two participants voiced the opinion that a blood-borne agent was not the source of AIDS. We may today, with the aid of hindsight, find such opinions hopelessly uninformed. Nonetheless, this is now; that was then. Thus, if we are to assess blame on the entire blood banking industry, which is the basis of the majority’s opinion, we ought also to hold responsible the CDC, the FDA and every other organization and agency that participated in UBS’s failure. The trial court instructed the jury that UBS was required to exercise due care in providing its services. The trial court further defined due care as that which a reasonably prudent blood bank would exercise, considering (1) the blood bank’s compliance with its own internal policies and procedures; (2) the knowledge and methods available in February 1984 to educate and screen donors; (3) the practices and procedures of the blood banking industry; and (4) the relevant government regulations and guidelines. However, in accordance with section 3, UBS warranted that it had "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 1992).) Whether a blood bank followed professional standards of care is not, according to this section, to be considered as merely an element of due care. It is itself a standard of care. Thus, in the first instance, the instruction minimizes the importance of professional standards in evaluating UBS’ conduct. Furthermore, in defining "exercised due care” as requiring UBS to take steps beyond those dictated by professional standards if those standards "are not sufficient to constitute due care” (circular reasoning if ever there was), the trial court, as well as the majority, failed to focus on the most crucial aspect of section 3, which is the phrase, "in providing the service according to the current state of the medical arts.” (745 ILCS 40/3 (West 1992).) That phrase modifies both "exercised due care” and "followed professional standards of care.” Like the requirement that UBS follow professional standards, it is not a mere element of due care, as prong two of the instruction implies. I do not profess to know with certainty what the legislature intended with regard to section 3. The legislative history is not nearly so conclusive as the majority would have it. Nonetheless, a plain reading of section 3 indicates that UBS’ responsibility to exercise due care and to follow professional practices was cast in terms of what medical science was reasonably able to accomplish in 1984. This necessarily requires that courts defer to the standards of the professional community (which in this case is comprised of medical doctors), as section 3 recognizes. In this case, the trial court and the majority have relegated "professional standards of care,” as well as "in providing the service according to the current state of the medical arts,” to the status of elements of due care. This is contrary to the plain language of section 3 and permits lay jurors to second-guess the professional judgments of those dedicated to providing a safe blood supply. It strikes me as sheer arrogance for the legal community, in hindsight, to question the professional judgment of those responding to the AIDS crisis in its early phases. Thus, to discuss, in the first instance, the blood banking industry’s early response to the AIDS crisis as adherence to mere "custom” and to suggest that the entire industry was negligent in that it "unduly lagged in the adoption of new and available devices,” as was the case in the tugboat industry’s failure to adopt the radio receiver (see The T.J. Hooper (2d Cir. 1932), 60 F.2d 737 , 740), is not only disingenuous, but places doctors in the category of gods, able to discern and conquer the unknown. Indeed, our supreme court’s warning in Darling against relying solely on custom to determine the standard of care assumes a custom upon which to rely. Our health industries’ early responses to AIDS were not about custom, but about desperation in the face of exponentially increasing morbidity coupled with a lack of reliable scientific data. We should focus in this case upon just how little we knew of AIDS in early 1984. What the majority sees today, relying on expert testimony aided by over a decade of hindsight, as reasonable responses to the threat to the blood supply were at the time neither so reasonable nor apparent. For instance, contrary to the implication of the majority opinion, although by February 1984 the possibility of surrogate testing of blood was discussed and suggested by some people in the medical community, it was neither recommended nor required by any professional association or regulatory agency. In any event, the majority notes that surrogate testing for hepatitis B is between 66% and 88% accurate in identifying potentially HIV-infected blood. In a worst-case scenario, that would mean that 34 out of 100 donors of blood who were HIV-positive would not have been screened out by surrogate testing. Even a best-case scenario would have resulted in the donation of a significant amount of HIV-positive blood. Dr. Francis acknowledged as much. Altruistic blood donors who honestly answered self-deferment questions might result in the same or better statistics, which is precisely the type of reasoning that the blood banking community was engaged in at the time. Given this, I fail to see the exalting of surrogate testing as having (a) been the panacea to the blood supply crisis, and (b) in hindsight, set the standard of care to which the blood banking industry should be held when no professional association or regulatory agency saw fit to so deem it. As our supreme court has stated in a related context, "medicine is not an exact science. It is rather a profession which involves the exercise of individual judgment within the framework of established procedures. Differences in opinion are consistent with the exercise of due care.” Walski v. Tiesenga (1978), 72 Ill. 2d 249, 261 , 381 N.E.2d 279 . For all of the foregoing reasons, I dissent. Justice McCormick participated in the decision in this appeal prior to his retirement from the Appellate Court of Illinois, First District, on August 1, 1995. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9739700. Public record. Not legal advice.