Case Summary

Factual and Procedural Background

Plaintiff "John Doe" received a blood transfusion during open heart surgery at NYU on January 4, 1984. He tested positive for the AIDS (HTLV-III) virus in June 1987 and alleges he contracted the virus from contaminated blood used in the January 1984 transfusion. The complaint alleges negligence by defendants in the collection and distribution of blood. Defendants (NYU and others) moved for summary judgment seeking dismissal on the ground that a screening test for the AIDS virus was not developed until April 1985 and therefore, as a matter of law, they should be relieved of liability for pre-1985 transfusions. NYU also argued the action is time-barred under the 2 1/2-year statute of limitations for medical malpractice. Plaintiffs cross-moved for leave to proceed anonymously and for a sealing order. The court decided these motions on July 31, 1990.

Legal Issues Presented

Whether defendants should be relieved, as a matter of law, of any liability for the pre-1985 transfusion because a screening test for the AIDS virus was not available until April 1985.
Whether the plaintiff's claim is barred by the 2 1/2-year statute of limitations applicable to medical malpractice actions, or whether the claim sounds in negligence with a three-year statute under CPLR 214-c (latent effects of exposure to any substance) that begins to run upon discovery.
Whether plaintiffs should be permitted to proceed anonymously and whether the court should seal the court file.

Arguments of the Parties

Defendants' (NYU) Arguments

Because a screening test for the AIDS virus was not developed until April 1985—14 months after the January 4, 1984 transfusion—defendants contend they should be relieved of any liability for the pre-1985 transfusion as a matter of law and move for summary judgment dismissing the complaint.
NYU argues the claim is barred by the 2 1/2-year statute of limitations applicable to medical malpractice actions.

Plaintiff's Arguments

Plaintiff alleges negligence by defendants in the collection and distribution of blood used in the 1984 transfusion and asserts he contracted the AIDS virus as a result.
Plaintiff contends the action sounds in negligence, not medical malpractice, and that under CPLR 214-c (latent effects of exposure to any substance) the three-year negligence statute of limitations began to run upon his discovery of his AIDS-positive status in June 1987, making service in April 1990 timely.
Plaintiff seeks discovery regarding what screening procedures and safeguards, if any, were in place at the NYU blood bank in January 1984.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Di Marco v Hudson Val. Blood Servs., 147 A.D.2d 156	Supports that where injury is caused by "the latent effects of exposure to any substance" (CPLR 214-c), the three-year negligence statute of limitations begins to run upon discovery of the injury.	The court relied on this authority to treat the claim as governed by the three-year negligence statute and to conclude that plaintiff's discovery in June 1987 made the April 1990 service timely.
Prego v City of New York, 147 A.D.2d 165	Same principle as above regarding CPLR 214-c and the commencement of the limitations period upon discovery for latent effects of exposure.	The court cited this case along with Di Marco to support its conclusion that the three-year limitations period, triggered by discovery in June 1987, renders the April 1990 service timely.

Court's Reasoning and Analysis

The court first addressed NYU's contention that lack of an available screening test until April 1985 absolves defendants of liability as a matter of law for the January 1984 transfusion. The court rejected that argument. It observed that by 1982 it was established there was a risk of transmission of AIDS by blood transfusions and that by 1983 many in the blood bank industry were employing safeguards such as surrogate testing and in-depth donor interviews. Given these facts, the court concluded that culpability for failure to follow recommended procedures and safeguards during the pre-1985 period was an unresolved issue of fact and not subject to disposition as a matter of law. Accordingly, the plaintiff was entitled to discovery to determine what screening procedures and safeguards, if any, were in place at the NYU blood bank in January 1984.

The court next considered NYU's statute-of-limitations argument. It concluded that the claim sounds in negligence rather than medical malpractice. Applying CPLR 214-c for injuries caused by "the latent effects of exposure to any substance," the court determined the three-year negligence statute of limitations began to run upon plaintiff's discovery of his AIDS-positive status in June 1987. Relying on Di Marco and Prego, the court held that service of the complaint in April 1990 was timely.

Finally, the court granted plaintiffs' unopposed cross motion to proceed anonymously and for a sealing order, directing that a copy of the order be served upon the County Clerk and that the files be sealed with future access by leave of the court.

Holding and Implications

NYU's motion for summary judgment is DENIED in its entirety. The court found that the absence of an AIDS screening test until April 1985 does not, as a matter of law, eliminate the possibility of negligence by blood suppliers for pre-1985 transfusions, and that factual inquiry (discovery) is required regarding the procedures and safeguards used by NYU in January 1984.

Plaintiffs' cross-motion to proceed anonymously and for a sealing order is GRANTED. The direct consequences are: (1) the defendants' summary judgment motion is denied and the case will proceed to discovery on the issue of blood bank procedures and safeguards in 1984; (2) the court treated the claim as one sounding in negligence under CPLR 214-c, concluding the three-year limitations period began upon discovery in June 1987 and that service in April 1990 was timely; and (3) the court ordered the court file sealed, with future access only by leave of the court. The opinion does not announce the creation of a new legal rule; it applies existing authorities and sends disputed factual issues to discovery.

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JOHN DOE et al., Plaintiffs, v. UNIVERSITY HOSPITAL OF THE NEW YORK UNIVERSITY MEDICAL CENTER et al., Defendants

EVE PREMINGER, J.

This is 1 of 2 motions decided by the court today involving plaintiffs who contracted AIDS as a result of blood transfusions given prior to the development in 1985 of a screening test for the AIDS virus. For the reasons stated below the court rejects defendants' argument that as a matter of law they should be relieved of any liability for the pre-1985 transfusion of contaminated blood.

Plaintiff "John Doe" received a blood transfusion during open heart surgery at NYU on January 4, 1984. Plaintiff tested positive for the AIDS (HTLV-III) virus in June 1987. He alleges that he contracted the virus from contaminated blood used in the January 1984 transfusion, and that defendants were negligent in the collection and distribution of such blood.

In support of its motion NYU submits a physician's affidavit which states that a screening test for the AIDS virus was not developed until April 1985, 14 months after plaintiff's transfusion. In reliance upon this fact NYU moves for summary judgment dismissing the complaint.

In the early 1980's, when society's ostriches were still treating AIDS as a "gay problem", more responsible members of the medical community were urging a closer look at the disease, particularly the substantial percentage of cases which were transfusion-related. While it is true that a test capable of screening blood for the AIDS virus was not available until early 1985, it had been established by 1982 that there was a risk of transmission by blood transfusions; by 1983 many in the blood bank industry were using safeguards such as surrogate testing (whereby donors were screened for blood abnormalities associated with AIDS) and in-depth interviews aimed at identifying donors who might be in a high risk group (see, US Dept of Health and Human Servs, Report of Second AIDS Prevention and Control Conf [Nov. 1988]; AIDS Figures Mount as Researchers Seek Answers to the Puzzle, Sept. 1983 Am Fam Physician). The plaintiff here is one of many unfortunate individuals across the country who were allegedly exposed to the AIDS virus prior to the development of a blood screening test in 1985. The culpability of blood suppliers for failure to follow recommended procedures and safeguards during this period is an issue which has yet to be resolved, and as recently as July 13, 1990 it was the subject of a hearing before the United States House of Representatives Energy Committee, Subcommittee on Blood Supply Safety.

Clearly, the fact that a screening test for AIDS was not available until 1985 does not foreclose this plaintiff's claims of negligence in the 1984 transfusion at issue. At the least, plaintiff is entitled to discovery to ascertain what screening procedures and safeguards, if any, were in place at the NYU blood bank in January 1984.

NYU next argues that plaintiff's claim is barred by the 2 1/2-year Statute of Limitations applicable to medical malpractice actions. Plaintiff's claim sounds in negligence, not medical malpractice; and because his injury was caused by "the latent effects of exposure to any substance" (CPLR 214-c) the three-year negligence Statute of Limitations began to run upon plaintiff's discovery of his injury in June 1987 (Di Marco v Hudson Val. Blood Servs., 147 A.D.2d 156; Prego v City of New York, 147 A.D.2d 165). Accordingly, service of the complaint in April 1990 was timely.

For the foregoing reasons NYU's motion is denied in its entirety.

Plaintiffs' cross motion for leave to proceed anonymously and for a sealing order is granted without opposition. Plaintiffs shall serve a copy of this order with notice of entry upon the County Clerk, and the files shall thereupon be sealed with future access to be by leave of the court.

DOE v. UNIV. HOSP. OF N Y UNIV