In this certified question from the Eleventh Circuit Court of Appeals, we are asked:
We answer the question in the affirmative.
The relevant facts, as certified by the Eleventh Circuit, are as follows:
On April 7, 1983, doctors at the Emory University Hospital (Emory Hospital) transfused two units of whole blood into Carol Bradway after performing reconstructive surgery on Ms. Bradway. Emory Hospital obtained the blood from the American National Red Cross (the Red Cross), a charitable, not-for-profit organization operating "blood banks," i.e., facilities engaged in the collection of human blood from volunteer donors for distribution to organizations providing medical services. See OCGA 31-22-1
(2) (1991). The Red Cross had no direct contact with Ms. Bradway but merely provided blood to Emory Hospital for use in Ms. Bradway's treatment.
On July 19, 1988, Ms. Bradway's doctor informed her that she was infected with the Human Immunodeficiency Virus (HIV). On April 19, 1989, Ms. Bradway and her husband, David Bradway, filed a complaint in Georgia state court alleging that the Red Cross was negligent in screening blood donors and in testing blood samples for the presence of HIV; specifically, the Bradways contend that the Red Cross, by not asking potential blood donors whether they are homosexuals, negligently failed to identify individuals possessing a high risk of being infected with HIV. The Bradways seek compensatory damages.
Pursuant to 28 U.S.C. 1441, 1446 (1988) [footnote omitted], the Red Cross removed the Bradway's action to the United States District Court for the Northern District of Georgia. The Red Cross then moved the district court to dismiss the Bradway's action because, according to the Red Cross, Georgia's statutes of limitation and ultimate repose for medical malpractice suits barred their suit. See OCGA 9-3-71
(1991 Cumulative Supp.) (Georgia's statutes of limitation and ultimate repose) [footnote omitted]; see also id. 9-3-70
(1982) (defining "action for medical malpractice") [footnote omitted]. The Bradways responded that they did not bring an action alleging medical malpractice but rather "ordinary" negligence. The district court, concluding that under Georgia law "an action against a blood bank for the negligent collection and supply of human blood is an action for medical malpractice," granted the Red Cross' motion and dismissed the case.
The Bradways appeal the district court's dismissal of their suit. The Bradways contend that the district court erred by holding that Georgia's statutes of limitation and ultimate repose for medical malpractice suits apply to a suit alleging ordinary negligence in screening blood donors and in testing blood samples. According to the Bradways, the district court incorrectly treated their case as an action alleging medical malpractice rather than "ordinary" negligence.
We are convinced that the steps involved in the collection, processing and distribution of blood by the Red Cross constitute a professional medical service. The procedures for the collection of blood, including donor screening and blood testing, are the product of professional medical expertise. Federal law mandates that screening procedures for determining the suitability of a donor as a source for blood are to be developed by a qualified physician or trained personnel under the supervision of a qualified physician. 21 CFR 640.3 (a). In compliance with Federal regulations, Red Cross physicians devise screening procedures intended to ensure the safety of the blood product and the transfusion process. A crucial part of the screening procedure developed by the physicians is the medical history interview. In this interview, prospective donors are asked questions designed to elicit information necessary for an effective evaluation of the donor; the formulation of these questions requires substantial medical knowledge and judgment.
The screening procedures developed by the physicians are carried out by licensed nurses, who also draw blood through phlebotomy, a medical procedure, and conduct a limited physical examination. Trained laboratory personnel serologically test the collected blood for blood type and a variety of infectious diseases. Blood may also be separated into different components, such as plasma and platelets, and processed. All blood products must be labeled and stored for ultimate distribution to medical facilities for transfusion purposes. Thus, by their very nature, the services provided by the Red Cross are medical services involving medical judgment. 1
Accordingly, the action brought against the Red Cross is one for medical malpractice under OCGA 9-3-70
and is subject to our statute of limitation and repose, OCGA 9-3-71
Our conclusion in this regard is borne out by many decisions in other jurisdictions. 3
An examination of the claim itself bears out our determination that the case before us is one involving medical malpractice and not ordinary negligence. 4
The injury in this case did not result from negligence on the part of the administering nurses; there is no allegation that the nurses did not follow established procedure or that the nurses made mistakes in conducting the screening interviews. Compare Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107
, 110 (354 SE2d 872
) (1987). Indeed, it is specifically stated that the nurses followed standard Red Cross screening procedure; the claim is that the
claim for damages resulting from the death of or injury to any person arising out of:
(1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or
(2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.
Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which the negligent or wrongful act or omission occurred.
Red Cross did not ask questions that would allow it to identify high risk individuals. The problem, then, is with the questions, not the questioners. The injury complained of here stems from the alleged failure of the questions to provide for effective elimination of high risk donors. These questions are, as we have said, the product of medical knowledge and judgment. 5
Thus, again, we deal with medical malpractice, not with ordinary negligence. 6
Kilpatrick & Cody, Judith A. Powell, Arnold & Porter, Bruce M. Chadwick, Julia L. Erickson, for appellee.