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[T] Blood Bank of Delaware2/28/2000
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(7) While we agree with the conclusion of the Superior Court, we restrict our affirmance to the narrow question before us -- whether Blood Bank is a health care provider. Our affirmance does not foreclose the question of whether decedent may recover at trial without the presentation of any expert testimony on the standard of care in the screening of blood donors in 1984. We do not agree with the Superior Court that the standard of care governing Blood Bank's conduct may be determined by a reasonable person "through the exercise of his or her common sense." Indeed, the case relied upon by the Superior Court for this comment is not authority for the submission of the standard of care to a jury without expert testimony. In Snyder v. American Assoc. of Blood Banks, N.J. Supr., 676 A.2d 1036 (1996), the Supreme Court of New Jersey examined at some length the potential liability of a blood bank for transmission of the HIV virus based on the state of the medical knowledge in 1984. Although the court upheld a jury finding of liability and award of damages, the court noted the plaintiffs' evidence at trial included expert testimony on the defendant's standard of care.
(8) We agree with the Superior Court that the learned intermediary doctrine does not apply to the transfusion of blood to the extent that it would relieve the provider of blood from liability under the circumstances and in view of the state of the medical knowledge in 1984. Given the uncertainty and limited knowledge surrounding the risk of HIV transmission in 1984, as Blood Bank claims, it is unrealistic to assume that Dr. Turner, a general practitioner, had any greater or more sophisticated knowledge than Blood Bank, an organization specializing in the securing of donors and the supply of blood. The extent of Dr. Turner's knowledge and his duty to advise the decedent of the risk of HIV infection through blood transfusions raise fact questions which preclude the grant of summary judgment.
(9) We affirm the denial of summary judgment of the Superior Court as to this interlocutory appeal subject to the reservations expressed in this order.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.
Page 1 2 Delaware Personal Injury Attorneys
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