Academic journal article Defense Counsel Journal

New Wave of Tainted Blood Litigation: Hepatitis C Liability Issues

Academic journal article Defense Counsel Journal

New Wave of Tainted Blood Litigation: Hepatitis C Liability Issues

Article excerpt

Both individual cases and class actions are raising multiple issues of liability and the bases on which damages may be imposed

A NEW wave of tainted blood litigation caused by the hepatitis C virus (HCV) has begun. Thousands of patients in the United States are receiving HCV "look-back" notifications that they may have been exposed to hepatitis C. Plaintiffs' lawyers are beginning to advertise for people who have contracted hepatitis C through a blood transfusion, organ transplant or the use of any blood products.

The hepatitis C epidemic in the United States has created international litigation. A group of Canadians, claiming that they were infected by tainted blood products collected from prisoners in the United States, have filed a $ 660 million lawsuit against the Canadian government and several private companies for failing to adequately safeguard the blood supply. This class action suit charges Ottawa with neglect for failing to set aside blood plasma collected in Arkansas prisons in the early 1980s after U.S. health officials already had determined that using the product was "imprudent" because of the high risk of infection. At the time, there was no test to indicate the presence of Hepatitis C. The plasma should not have been collected from inmates who tested positive for hepatitis B.

TREATMENTS FOR HEPATITIS C

While there is no known cure for hepatitis C, in January 1999, the U.S. Department of Veterans Affairs announced plans to offer a costly new drug treatment to former military personnel suffering from hepatitis C. Kenneth W. Kizer, the department's undersecretary for health, was quoted in the Washington Post as stating that the department's package, costing $12,000 to $15,000 a year per patient, is a harbinger of costly medical treatments to come as new drugs become available to treat chronic ailments in veterans. Kizer said the costs of the HCV initiative--$250 million to $300 million this year alone--have provoked questions outside the V.A. about the necessity of this effort.

He said the cost should rise next fiscal year to $400 million to $500 million. Even "at government prices," he maintains the HCV initiative is a cost-effective way to fight a disease that V.A. surveys have found is widespread among veterans. HCV can lead to other costly medical treatments including liver transplants.

Veterans who choose the new treatment face a difficult program. Side effects of the drugs involved--interferons and ribavirin --are said to be serious, and include depression, anemia and flu-like symptoms. Only half of those who take the treatments improve, and those who do are not said to have been cured, but only to have eliminated signs of active liver disease.

HCV LOOK BACK

In 1989, Texas enacted Section 162.008 of the Texas Health and Safety Code, which enumerates "procedures for notifying blood recipients." This statute provides:

      Each hospital, physician, health agency and other transfuser of blood
   shall strictly follow the official "Operation Look Back" procedure of the
   American Association of Blood Banks (AABB) or the American Red Cross Blood
   Services in notifying past and future recipients of blood. The only
   exception to notifying a recipient of blood is if the recipient is dead or
   cannot be located.

Physicians and hospitals thus must take seriously the FDA's recent look back "recommendations." The FDA recommended that blood establishments begin by March 1999 to look back whenever a donor tests positive for HCV virus. The look back is a retest of samples from all previous donations by such individuals, going back 10 years, followed by notice to hospitals and physicians, who must in turn inform patients who received this reactive blood or blood products.

The FDA required that this take place as soon as possible and be completed by March of this year. Blood consignees, which include hospital and transfusion services, have one year from the date of their notification to attempt to notify recipients of the infected blood. …

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