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No expert witness is needed in a negligence lawsuit over an HIV-tainted blood transfusion since it “does not allege medical malpractice in the traditional sense,” a federal judge has ruled. Instead, the judge said, such a claim “is closer to ordinary negligence than to medical malpractice” when the plaintiff alleges that the hospital “voluntarily assumed a duty to obtain his informed consent and failed to use reasonable care in performing that duty.” In his eight-page opinion in Kotofsky v. Albert Einstein Medical Center, Senior U.S. District Judge Thomas N. O’Neill Jr. rejected motions for summary judgment filed by the hospital and Dr. John Bell-Thompson. The plaintiff in the suit, Morris Kotofsky, had heart bypass surgery at AEMC in November 1991. During his nearly month-long stay, Kotofsky signed a “consent to transfusion of blood and blood components and release.” Kotofsky claims that the form never mentioned the risks of HIV infection with blood from unknown donors nor the alternatives to such donor transfusions, such as having blood withdrawn prior to surgery or donated by a family member. Following the surgery, Kotofsky received one unit of packed red blood cells supplied by the American Red Cross. But five years later, Red Cross officials said they were conducting a “look back” investigation because Kotofsky’s blood donor had been diagnosed with HIV. Kotofsky himself was diagnosed as HIV-positive in June 1996. In his suit, Kotofsky blamed the Red Cross, AEMC and Bell-Thompson. The Red Cross removed the suit to federal court but later settled for an undisclosed sum. In the claims against AEMC and the doctor, Kotofsky’s lawyers, Dennis M. Abrams and Anthony J. Voci of Lowenthal & Abrams in Bala Cynwyd, Pa., contend that the defendants voluntarily undertook a duty to obtain Kotofsky’s informed consent to the blood transfusion. They breached that duty, they argue, by failing to inform Kotofsky of the risks and alternatives to a blood transfusion from an unknown donor. Early in the litigation, Abrams and Voci conceded that the hospital defendants could not be held liable for failing to investigate and ensure the blood was free from disease. But they insisted that their lack-of-consent claim was valid. But AEMC’s lawyer, Andrew K. Worek of Harvey Pennington Herting & Reneissen, and Bell-Thompson’s lawyer, Regan Safier of Philadelphia-based Weber Goldstein Greenberg & Gallagher, argued that Kotofsky’s case was barred by the Pennsylvania Blood Shield Law. They also said the lack-of-consent claim should be dismissed because neither defendant had a duty under Pennsylvania law to obtain Kotofsky’s informed consent and because a negligence-based informed-consent claim does not constitute a viable cause of action. Judge O’Neill, in a prior opinion, rejected both defense arguments, clearing the way for the case to go into discovery. Recently, both remaining defendants moved for summary judgment on the grounds that Kotofsky failed to designate an expert witness or produce an expert report and therefore, under Pennsylvania law, cannot establish a prima facie claim of medical malpractice. O’Neill found that under Pennsylvania law, it is well settled that expert testimony is necessary to make out a prima facie case of medical malpractice since the plaintiff must establish the recognized standard of care attributable to physicians under like circumstances. “A plaintiff must present expert testimony to establish to a reasonable degree of medical certainty that the defendant’s acts deviated from an accepted medical standard and that such deviation was the proximate cause of plaintiff’s injuries,” he wrote. However, O’Neill found that the defense motion “misconstrues the nature of [Kotofsky's] claim. Kotofsky does not allege medical malpractice in the traditional sense.” Malpractice, he said, is defined as the “failure of one rendering professional services to exercise that degree of skill and learning applied under all the circumstances in the community by the average prudent, reputable member of the profession with the result of injury, loss or damage to the recipient of those services or to those entitled to rely upon them.” By contrast, O’Neill said, Kotofsky claims that the defendants “voluntarily assumed a duty to obtain his informed consent and failed to use reasonable care in performing that duty.” O’Neill found that another Eastern District of Pennsylvania judge agreed that such allegations state a viable claim. In Jones v. Philadelphia of College of Osteopathic Medicine, the late U.S. District Judge Robert S. Gawthrop III green-lighted a suit where the plaintiff said the hospital had issued its own consent form for blood transfusions. Gawthrop ruled that the hospital had “gratuitously undertaken” an obligation and therefore had “a duty to make certain that the informed consent forms fully inform patients … of the risks associated with blood transfusion.” Such a case, Gawthrop said, is not a medical malpractice case, but a claim of general negligence concerning duty. In typical style, Gawthrop offered a concrete example from everyday life to make his point. “One has, for example, no duty to drive one’s neighbor to the airport. But if one nevertheless volunteers to undertake that good-neighborly task, and then drives negligently, causing the neighbor to be injured en route, one is held legally accountable,” Gawthrop wrote. O’Neill found that Kotofsky’s claim, too, is “closer to ordinary negligence than to medical malpractice.” To survive summary judgment, O’Neill said, Kotofsky must show that there are fact disputes with respect to his claim that the defendants owed him a duty, breached that duty and that such breach caused him to suffer an injury. O’Neill found that Kotofsky cleared that hurdle by pointing to deposition testimony from the director of the blood bank at AEMC who said that alternative transfusion methods existed at the time of his operation and that he did not recall either the Red Cross or AEMC placing any limits on the use of those methods. The Red Cross, which settled and is no longer in the case, was represented by attorneys Howard M. Klein and Nicholas M. Centrella of Philadelphia-based Conrad O’Brien Gellman & Rohn and Scott D. Helsel and Bruce M. Chadwick of Washington, D.C.-based Arnold & Porter.

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