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Troum v. Newark Beth Israel Medical Center3/5/2001
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 31, 2001
Arthur Troum was infected with the human immunodeficiency virus (HIV) when a tainted blood product was administered during cardiothoracic surgery. The virus subsequently ripened into acquired immunodeficiency syndrome (AIDS) resulting in Troum's death. Plaintiff Carol Troum brought survival and wrongful death actions contending that Dr. Luis Rivera committed medical malpractice by unnecessarily ordering the tainted blood transfusion. This appeal followed a jury verdict in plaintiff's favor.
The principal question presented is whether the statute of limitations expired. Defendant argues that plaintiff's survival action accrued when the deceased tested positive for HIV and was aware that his infection was attributable to the fault of another. Plaintiff contends HIV and AIDS are separate diseases and that the injury was the onset of AIDS, not the discovery of the presence of the HIV infection.
Because the medical evidence establishes that HIV and AIDS occur as a seamless progression of a single pathology, we reject plaintiff's argument that each condition is a separate and distinct illness triggering a new statute of limitations. We hold that the survival action accrued when plaintiff tested positive for HIV and knew that his infection was caused by another's negligence. We also conclude that the deceased was subjectively aware of the correlation between HIV and AIDS, and that the survival action was not saved by the discovery rule. And finally, we are satisfied that the wrongful death claim did not require the availability of an action for damages by the deceased at the time of his death, and was thus not barred by expiration of the limitations period.
I. FACTS PERTAINING TO LIABILITY
Arthur Troum was a physician. Following a heart attack, Troum terminated his private practice and commenced employment with the Veteran's Administration.
In 1984, Dr. Isaac Gielchinsky performed a quadruple coronary artery bypass on Troum at Beth Israel Hospital. At trial, no one involved in the procedure had any independent recollection of the operation. Medical records indicated that the bypass was performed flawlessly. At the conclusion of the procedure, Troum was injected with protamine, a drug designed to promote clotting. Gielchinsky testified that this was a routine technique, and that none of the medical records indicated that Troum was bleeding excessively either during or after the operation.
Troum was transferred to the coronary care unit in stable condition. It was customary practice for the surgeon, the attending resident, the anesthesiologist, the profusionist, and a nurse to remain with the patient for approximately one-half hour. The doctors would then return to the operating room, leaving the patient in the care of the resident in charge of the coronary care unit.
Dr. Rivera was the resident on call in the coronary care unit. He and two other residents had begun their cardiovascular surgery residencies only three weeks earlier. Barbara Corvino- Diaz was the registered nurse. Because of time constraints, she would not record the name of the doctor giving specific orders at the time the orders were issued. At the conclusion of her shift, Corvino-Diaz would identify the resident on call as the doctor who issued a particular order even though the order was actually issued by another physician.
The medical records indicated that Dr. Rivera ordered the administration of cryoprecipitate. It is undisputed that Troum was administered ten units of cryoprecipitate while in the coronary care unit shortly af
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