Justices hear lawsuit in blood bank death
TALLAHASSEE (AP) – A lawyer for the parents of a 7-year-old boy who died after contracting West Nile virus from a transfusion of tainted blood asked the Florida Supreme Court on Thursday to restore an $8 million jury verdict against a blood bank.
The case, though, has wider implications. The justices have been asked to decide whether all blood banks are covered by Florida’s medical malpractice statutes, which include special procedures and limits on damages and attorney fees, rather than general negligence laws.
While lawyers argued the case, a local blood bank’s mobile unit was parked across the street at the Capitol, where a blood drive was coincidentally being held.
The American Red Cross and two national blood bank associations are participating in the case through a written “friend-of-the-court” argument that sided with the defendant, LifeSouth Community Blood Centers Inc. The justices will rule at a later date.
The 1st District Court of Appeal overturned the negligence verdict in the death of Chase Fitchner. It ruled the boy’s estate should have filed a notice to LifeSouth before suing as required for a medical malpractice claim.
The parents’ lawyer, Dean LeBoeuf argued the appellate ruling violates his clients’ right of access to the courts, saying it would be impossible to comply with the malpractice requirements. That’s because they couldn’t obtain records on the donor they’d need to file a preliminary notice because of patient confidentiality laws, he said.
The Florida Supreme Court in 1992 ruled blood banks are not covered by malpractice laws because they do not provide treatment or care to blood recipients.
The Legislature, though, amended the law to include blood banks in its definition of health care providers, argued LifeSouth’s lawyer, Robert Biasotti.
LeBoeuf said even with that change the medical malpractice law still doesn’t apply because the Tallahassee boy received blood, not medical care from LifeSouth. He obtained the transfusion at the University of Florida’s Shands Hospital in Gainesville in 2002 and died 18 months later.
“The blood bank had nothing to do with providing us with medical care,” LeBoeuf said. He said the blood Chase received was a product, not medical care.
Biasotti disagreed.
“The screening of the blood and trying to keep West Nile virus out of the blood is a medical service,” Biasotti said. “That is medical negligence, not slip and fall negligence.”
Justice Harry Lee Anstead noted the courts usually give deference to the Legislature unless it passes an unconstitutional law.
“The Legislature in this scenario really is the 800 pound gorilla,” Anstead told LeBoeuf. “You’re in a very difficult situation.”