Warning: Lagging Behind Technology is Harzardous for Your Health
by George T. Baxter, Esq.
Special Thanks to Dr. Marcus Conant, Dr. Donald Francis and Dr. Edgar Engleman.
Regardless of your industry, health care, medical, information systems, machinery manufacturing, automakers, to name a few, a daunting question is what is your responsibility to use the latest technology to reduce life-threatening risks of injury from your services or products. Is the decision based on a cost/benefit analysis or a greater social responsibility?
I am going to tell you the story behind the landmark case Synder v. American Assoiation of Blood Banks when an exhausted jury in a Hackensack, New Jersey, courtroom after months of testimony and entrenched courtroom warfare, the judge dying from a heart attack during the trial, came back with a landmark verdict against the entire United States blood industry. The jury found the whole industry had lagged begind available testing that would have prevented thousands of people from getting AIDS contaminated blood products during the early days of the AIDS epidemic. Some epidemologist say the AIDS epidemic could have been avoided if the blood supply was better protected. The case fueled a congressional investigation, chaired by Congressman John Dingle, of the United States Congressional Energy and Commerce Committee and the Oversight and Investigations Sub-Committee into how govnermental and industry conflicts of interest allowed over 30,000 people to get AIDS contaminated blood products. But lets start at the beginning of the story.
It was a 1988 winter afternoon, I rubbed my thumb over the freshly painted “George T. Baxter, Attorney at Law” in my office window across from the courthouse when William and Roslyn Snyder come in. Roslyn is about 5′ 5″, late fifties, wears no make-up with natuaral gray hair. Bill is smaller than Roslyn. The skin on his face droops from its pronounced bone structure and he looks painfully tired. He is wearing an Anheuser-Bush work jacket and wrinkled khaki pants that are too loose for him. I offer Bill and Rosyln coffee and they tell me about how on August 24, 1984 Bill had heart surgery. It was supposed to make his life better, but they gave him AIDS contaminated blood. “Look at me now.” Bill said with new holes punched into his belt to hold up his pants.
In these days it was a medical curse and social stigma to contract AIDS. Most patients died from it within 18 months and public hysteria was high. In Arcardia, Florida, the home of three young boys, the Ray family, who were hemophiliacs, and infected with AIDS, an arsonist burned down their home. The school had voted to keep the boys out of school. A judge ordered they could return to school and their house was burned down to drive them out of town. It was a time of panic and hysteria.
“I don’t want what happened to those boys in Arcadia to happen to my boys. They wouldn’t understand it.” Bill explained that he and Rosyln had adopted two brain damaged boys and lived in the next county over from Arcadia.
The legal problem for Bill was that blood banks, led by the American Association of Blood Banks, American Red Cross and regulated by the Federal Food and Drug Administration as a biologic, did not test blood donors for AIDS yet. AIDS testing did not begin until May 1986. That was the industry standard of care when Bill was transfused. He was just one of those unfortunate patients who got an unavoidably contaminated blood transfusion during the window of 1982 – May 1986 before industry testing began. I wanted to help Bill and Roslyn Synder it was afterall why I became a personal injury lawyer. But there was nothing that could be done for them. Or, was there?
It turned out that on January 3, 1983 the United States Centers for Disease Control, new formed AIDS Task Force, held an emergency meeting in Atlanta, Georgia. The only newspaper to cover the story was the Philidelphia Enquirer. There was a photo of the heads of the American blood industry and public health officals in the Center for Disease Control auditorium as the Task Force presented evidence that AIDS was getting into the blood supply. The CDC recommended a surrogate test that would identify donors at risk for transmiting AIDS. But no one wanted to listen. The blood bankers argued that the CDC’s evidence was too weak to justify the added cost of testing.
Dr. Donald P. Francis, a CDC epidemologist on the Task Force banged the table with his fist, demanding to know from the blood bankers and public health officials, “How many more people have to die before you will act? Tell us and we can meet then.”
Over the next few months I maxed out my credit cards fying to San Francisco and Palo Alto to meet Dr. Francis, and also Dr. Edgar Engleman at Stanford, and Dr. Marcus Conant.
Don Francis tells me how the Centers for Disease Control AIDS Task Force had been tracking AIDS and had gathered evidence by December 1982 that it will contaminate the blood supply unless the blood industry started surroate testing. The CDC had recommended the hepatatis B core antibody test that identified markers in people who had been exposed to AIDS and hepitatis. The CDC showed that the test was over 95 % effective.
Dr. Edgar Engleman tells me how he started testing the blood at the Stanford University Hospital in May 1983. This is over a year before Bill’s transfusion. Dr. Engleman explained how he caught one AIDS infected doner who said he had previously donated at other San Francisco blood banks, but Stanford prevented his blood from entering its hospital blood supply.
Dr. Marcus Conant, a San Francisco dermatologist, explained how he diagnosed the earliest AIDS cases, even before it was called AIDS. Patients came to him with skin legions later diagnosed as GRID, Gay Related Inmmune Deficiency. Then to de-politize the disease, it became simply AIDS. Dr. Conant explained how even though they changed the name of the disease, so long as it was still seen as a gay disease, nothing got done about it.
It is against this politics of AIDS and gays and the stubborness of the blood industry and public health officials that I decide to take on the system for Bill. Bill and Rosyln Snyder are victums of these politics and the entire industry’s failure to use the available technology that would have made blood safer and prevented his infection.
TUG BOATS AND T.J. HOOPER
The T.J. Hooper story goes like this. It is 1932 and T.J. Hooper is the skipper of a tugboat pulling a barge. During a storm the barge sank and the cargo was lost. The owners of the cargo sue the barge owners who in turn sues T.J. Hooper. The owners allege that T.J. Hooper was neglient because he failed to equip his tugboat with a radio that would have warned of bad weather. T.J. Hooper argued it was not the industry practice to have radios yet. He argued that since no other tugboats had radios, this was the industry standard.
Judge Learned Hand, a legal scholar of his time, found the tugboat liable for the property loss. He stated, “Indeed in most cases reasonable prudence is in fact common practice, but strictly it is never the measure. A whole calling may have unduly lagged in the adoption of a new and available device. There are precautions so imperative that even their universal disregard will not excuse their omission.”
This is the legal precedent that I use to fight for Bill and Rosyln Synder against the entire blood industry That almost two years before his transfusion in August 1984, there was available tests that would have identified the AIDS infected blood donor and prevented Bill from getting the contaminated blood.
SYNDER I: THE BATTLE BEGINS.
The first appeal to the New Jersey Appellate Court and then the Supreme Court is captioned, Synder v. Mekhjian, 244 N.J. Super. 281 (App. Div. 1990). In this appeal the courts dealt with the right of an AIDS patient to sue the blood bank for giving him contaminated blood. The court ruled that even though it was not the blood industry’s standard to test donors for AIDS when Bill was transfused, the based on the testimony of Dr. Marcus Conant, Dr. Donald Francis and Dr. Edgar Engleman, there was enough in the record to raise a factual question about the reasonableness of the AABB in failing to recommend the testing. The Honorable Slyvia Pressler, wrote, “There is certainly enough in the record to raise a factual question as to the reasonableness of the AABB’s conduct in opting to forgo guidelines which would have required it members to perform surrogate testing or more vigorous doner screening.”
SYNDER II: THE TRIAL.
It is with political hindsight that I see the blood industry and governement got away with not protecting the blood supply from the AIDS epidemic because AIDS was thought to be a gay community problem. Dr. Conant states it that so long as it was considered a queer disease no one care about it. It the only way to explain the total lack of media and newspaper covergage of Atlanta.
At the trial the jury listened intently to Dr. Conant, Dr. Francis and Dr. Engleman testifiy about how the technology, i.e. surroagte testing for AIDS, existed two years before Bill was trtansfused. We even tracked down the blood donor and tested him with the hepatitis B core antibody test. He was positive for both AIDS and hepatitis B, which proved had the test been used, he would have been deferred and his blood rejected.
The blood industry argued that the Center for Disease Control evidence was to weak to justify the added cost of surrogate testing. If we assume this true in January 1983, it certainly was no longer true by August 1984 after more transfusion AIDS cases suffaced.
On appeal to the New Jersey Appellate Court and Supreme Court the jury verdict was affirmed.
Bill Synder died from AIDS a couple years later.