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ESTATE OF DOE v. VANDERBILT UNIV.

June 24, 1993

ESTATE OF JANE DOE, AND JOHN DOE, Plaintiffs,
v.
VANDERBILT UNIVERSITY, INC., d/b/a VANDERBILT UNIVERSITY MEDICAL CENTER and AMERICAN RED CROSS, Defendants.



The opinion of the court was delivered by: THOMAS A. WISEMAN, JR.

 I.

 Before the Court are motions and cross-motions for summary judgment upon which exhaustive briefs (an obvious oxymoron) have been filed and on which the court heard oral argument on June 9, 1993. After consideration thereof and the entire file in the matter, the court is now ready to rule thereon.

 THE MOTIONS

 Plaintiff moves for summary judgment on the affirmative defense of Tennessee Code Annotated § 29-26-116(a)(3) *fn1" asserted by the American Red Cross (ARC).

 ARC cross-moves for summary judgment based on the same statute.

 Vanderbilt University Medical Center (Vanderbilt) moves for summary judgment on plaintiffs' claim that Vanderbilt was negligent in failing to notify plaintiffs and others who received blood prior to 1985 (when HIV testing of blood before transfusion was begun) that they might have contracted the HIV virus through such transfusions. Vanderbilt's motion is based on the statute of repose as well as Plaintiffs' failure to support their allegation of negligence with an affidavit of a medical specialist from Tennessee or a contiguous state.

 THE UNCONTESTED FACTS

 On August 28, 1984, the plaintiff, Jane Doe, was admitted to Vanderbilt for jaw surgery. The plaintiff received four units of blood during the surgery, nonspecifically supplied to Vanderbilt by the ARC.

 Jane Doe became pregnant and gave birth to a girl. The child was diagnosed and died on November 25, 1989 of pneumocystis carinii pneumonia, an AIDS-related disease. On that same day, Jane Doe learned that she too was infected with the HIV virus. It was not until December 7, 1989, that plaintiff discovered that she had received the transfusion during her jaw surgery in 1984. Jane Doe died on April 30, 1992.

 In the early 1980s, the HIV virus had not received the national attention or medical study that it has today. It was not until 1985 that the Food and Drug Administration approved a blood screening test for the HIV virus. In an attempt to enhance prevention and awareness of the HIV virus, the ARC implemented a program in 1986 called "Lookback." The program was designed to notify persons who had received blood prior to 1985 of their possible exposure to HIV and to encourage them to be tested. In reality, the ARC did not contact every blood recipient prior to 1985; instead, it contacted only individuals who had been transfused with the blood of donors now known to be HIV positive. In March of 1987, the Center for Disease Control (CDC) issued a report urging physicians to offer HIV testing to patients who had received a blood transfusion prior to 1985. Neither Vanderbilt nor the ARC notified Jane Doe that she might have been infected in 1984.

 II.

 DISCUSSION

 Although these questions have been presented in several other states under similar statutes, they are of first impression in Tennessee. Resolution of these motions requires a novel determination of Tennessee law, and it may well be dispositive of this litigation as well as other that may arise. For these reasons, this court will certify an appeal from this ruling under 28 U.S.C. § 1292(b), and the Sixth Circuit Court of Appeals may well wish to certify ...


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