AMICUS NEWS

No. 12. January 24, 1997

ILLINOIS HOLDS BLOOD BANKS TO PROFESSIONAL STANDARD OF CARE UNDER BLOOD SHIELD ACT

Advincula v. United Blood Services, No. 79653 (Ill., Dec. 19, 1997), (1996 WL 732045) is a negligence suit against a blood bank. In 1984, United Blood Services, a company that operates nationwide mobile blood collection centers, collected a unit of HIV-c ontaminated blood from a donor at a volunteer blood drive. Advincula received the blood in a transfusion during open-heart bypass surgery. Thereafter, he contracted the AIDS virus and died. His wife sued UBS, alleging that it had negligently failed to scr een the HIV-contaminated blood. UBS defense was that at the time this blood was collected, few, if any blood banks used such screening procedures.

Under Section 3 of Illinois' Blood Shield Act, a blood bank has a legal duty "to exercise due care and follow professional standards of care" in providing the service "according to the current state of professional arts." The trial court agreed with the plaintiff and held that section 3 expressed a due care or "ordinary negligence" standard, i.e., that of a reasonably careful blood bank under the circumstances, not merely conformity to accepted professional practices.

On appeal to the Illinois Supreme Court, AAJs amicus curiae brief urged the court to uphold the trial court's statutory construction but, even if the blood bank were held to professional standards alone, plaintiff should be permitted to prove that ind ustry standards were unacceptably deficient in view of the information about AIDS that was available to the industry at the time.

Looking to the express language, statutory history, and common law, the Court found that section 3 must be construed to require a "professional standard of care," which is the standard imposed upon blood banks in most jurisdictions. The Court also determ ined that evidence that defendant's conduct conformed with the general custom or practice among blood banks is evidence of due care. However, it is not conclusive. Plaintiff may present expert testimony that the prevailing professional practice is itself unreasonable and constitutes negligence.