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Although the Red Cross conceded that it had provided blood from a donor it should have rejected as a high risk for HIV, it won a summary judgment in a Georgia suit alleging negligence, emotional distress and fear of HIV. To defeat the summary judgment and get to a jury, the plaintiff — who received a transfusion of the potentially tainted blood in August 1998 — must show that the blood had in fact exposed her to HIV, the virus that causes AIDS, an Atlanta Superior Court judge found. A slew of so-called AIDS-phobia decisions during the 1990s held that plaintiffs seeking to recover damages for the fear of HIV must prove they were exposed to the virus. The Red Cross suit is unusual, however, because it involves the rare HIV strain Group O, which the Centers for Disease Control and Prevention (CDC) says is found exclusively in people from west and central Africa. Most notably, Group O HIV cannot be detected by current tests, according to the Red Cross and the Georgia plaintiff, Bernice Mantooth. That leaves Mantooth in a quandary because, though she and the donor have tested HIV-negative, there is no assurance they do not have Group O. THE PLAINTIFF’S DILEMMA The plaintiff’s dilemma — the need for evidence of a virus that cannot be detected — does not obviate her obligation to provide evidence, Judge Constance C. Russell concluded in Mantooth v. American National Red Cross, No. 1999-CV-13088 (Fulton Co. Super. Ct). The donor lived in the Central African Republic while in the Peace Corps. Under an FDA guideline, the Red Cross does not accept blood donations from people who have lived for a year or more in central or west Africa because of the potential for Group O infection, said Red Cross lawyer Scott P. Hilsen, of counsel with the Atlanta office of Columbia, S.C.’s Nelson Mullins Riley & Scarborough. When the donor offered blood in August 1998, a Red Cross worker wrongly failed to determine the specific dates the donor had been in this African region, said Hilsen. When the donor offered blood again in October 1998, a different Red Cross worker established the travel details and told the donor the Red Cross could not accept the donation. The Red Cross tracked the previous donation and informed the plaintiff in a letter about Group O and that it was not detectable, Hilsen said. Mantooth is an elderly woman with various health problems, including heart disease, according to the plaintiff’s brief opposing summary judgment. On the day of the transfusion, she had entered the emergency room at Cartersville Medical Center in Georgia with chest pain and shortness of breath. Doctors treated her and were ready to send her home when they ordered the transfusion. Once it began, her chest pain became severe and she was rushed to intensive care and ultimately to a hospital in Atlanta, the brief says. Mantooth alleges that when she was notified four months after the transfusion that the blood may have been HIV-tainted, she became afraid for her own health and that of her family. The litigants in the suit may claim that Group O is not detectable, but the CDC has a different position. Current tests that screen the blood supply indeed can detect Group O, but are not reliable, said Harold Jaffe, CDC’s director of AIDS, Sexually Transmitted Diseases and Tuberculosis laboratory research. In the Georgia case, the Red Cross won a pretrial victory by arguing that for the purposes of the summary judgment issue, the judge should presume the Red Cross’ negligence and the plaintiff’s emotional suffering, Hilsen said. “The issue was not about negligence,” Hilsen said. “The issue was about damages; damages that are not legally recoverable.” He cited Georgia’s first-impression case on the question, Russaw v. Martin, No. 472 S.E.2d 508 (1996), in which a Georgia Court of Appeals panel held that it was legally unreasonable to allow a plaintiff to recover for emotional injuries and mental anguish without proof of exposure to HIV. Hilsen said the minimum settlement offers from the plaintiff’s attorney, Richard L. Brittain of Bird & Associates in Atlanta, came to $1 million. “We were dealing with a substantial demand,” Hilsen says. Brittain would say only that he has filed a notice of appeal and that he and his clients disagree with the summary judgment decision. In a brief opposing the Red Cross summary judgment motion, Brittain argued that the earlier Georgia decision does not apply because the facts are too dissimilar. In that case, the plaintiff had been struck by a needle that had been used to inject an elderly patient’s medicine into a heparin lock, and there was no evidence that the needle had ever made contact with the elderly patient’s body fluids.

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