This past Thursday, the parents of a 7 year old boy who died after contracting West Nile virus from a tainted blood transfusion asked the Florida Supreme Court to restore their $8 million verdict against the blood bank from which the blood was received.
The justices within the Supreme Court have been asked to decide whether all blood banks are covered by Florida's medical malpractice statutes, which includes special procedures and also limits on damages and attorney fees and differ from general negligence laws.
Sources report that The American Red Cross and two other national blood bank associations are participating in the case through a written "friend-of-the-court" argument that sided with the lawsuit's defendant, LifeSouth Community Blood Centers Inc. The judges are expected to rule on this issue at a later date.
The 1st District Court overturned originally the negligence verdict. Even though the parents' lawsuit alleges that the transfusion caused the death of their son, Chase Fitchner, the court ruled that the boy's estate should have filed a notice with LifeSouth before suing. It said that this is a required practice for all medical malpractice claims.
However, the parents' lawyer, Dean LeBoeuf, argued against this. He said that the appellate ruling violates his clients' right of access to the courts. He also said that it would be impossible to comply with Florida malpractice requirements and that they could not obtain records on the donor, which they would need to file a preliminary notice. Such records could not be obtained due to patient confidentiality laws.
In 1992, the Florida Supreme Court ruled that blood banks are not covered by medical malpractice laws because they do not provide treatment to the recipients of blood transfusions.
"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.
However, LifeSouth's lawyer, Robert Biasotti disagrees. Biasotti said, "the screening of the blood and trying to keep West Nile virus out of the blood is a medical service."
Both parties are awaiting the Florida Supreme Court's decision.
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