Advincula v. United Blood Services

Annotate this Case

NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.

Docket No. 79653--Agenda 12--January 1996.
MARIETTA ADVINCULA, Appellee, v. UNITED BLOOD SERVICES,
Appellant.
Opinion filed December 19, 1996.

JUSTICE FREEMAN delivered the opinion of the court:
This case primarily concerns the standard of care under
section 3 of the Blood and Organ Transaction Liability Act (Blood
Shield Act) (Ill. Rev. Stat. 1983, ch. 111«, par. 5101 et seq.),
against which the conduct of a nonprofit blood bank charged with
negligence in collecting whole blood contaminated with the human
immunodeficiency virus (HIV) must be measured.
Plaintiff, Marietta Advincula, as the special administrator of
the estate of her husband, Ronaldo Advincula, deceased, brought
wrongful death (Ill. Rev. Stat. 1983, ch. 70, par. 1 et seq.),
family expense (Ill. Rev. Stat. 1983, ch. 40, par. 1015), and
survival actions (Ill. Rev. Stat. 1983, ch. 110«, par. 27--6) in
the circuit court of Cook County against defendant, United Blood
Services (UBS). UBS operates nonprofit blood banks which collect
donated whole human blood and is an operating division of Blood
Systems, Inc., a nonprofit Arizona corporation.
Following trial, the jury returned a verdict of $2.14 million
in plaintiff's favor on all claims. UBS filed a post-trial motion
for judgment notwithstanding the verdict or, alternatively, a new
trial. The trial court denied the motion, and defendant appealed.
A sharply divided appellate panel affirmed, issuing three
separate published opinions: the majority opinion delivered by
Justice Scariano, a special concurrence by Justice DiVito, urging
remand for retrial, and a dissent by Justice McCormick. 274 Ill.
App. 3d 573. These published opinions addressed the appropriate
standard of care under section 3 of the Act and proper application
of the standard. A Supreme Court Rule 23 order (134 Ill. 2d R. 23)
addressed remaining issues, e.g., proof of proximate cause,
admissibility of expert opinion testimony and time-barring of the
survival action.
Following the decision, the appellate court issued a
certificate of importance pursuant to Supreme Court Rule 316 (134
Ill. 2d R. 316) and article VI, section 4(c), of the Illinois
Constitution of 1970 (Ill. Const. 1970, art. VI, 4(c)). We assumed
jurisdiction and granted the American National Red Cross, the
American Association of Blood Banks (AABB), the American Blood
Resources Association (ABRA) and Abbott Laboratories permission to
file amicus curiae briefs in support of UBS. We granted similar
permission to the Illinois Trial Lawyers Association and the
Association of Trial Lawyers of America, which support plaintiff.
134 Ill. 2d R. 345. The thrust of the amici curiae support concerns
the interpretation of section 3 with respect to standard of care.
Plaintiff initially moved unsuccessfully to dismiss the
appeal, contesting jurisdiction. Plaintiff states that she
incorporates that motion in her brief and requests its
reconsideration. Such request in this form is not properly before
the court. See Ill. Rev. Stat. 1983, ch. 110, par. 2--620; 134 Ill.
2d R. 361(a).
Plaintiff also filed motions to strike portions of ABRA's
brief and the entirety of AABB's brief. Plaintiff's motions were
taken with the case. We find that information in ABRA's brief that
provides background to the Acquired Immune Deficiency Syndrome
(AIDS) crisis essentially appears within the record on appeal and
within the parties' briefs. Further, ABRA's views may be properly
expressed in its brief despite that it is an association of blood
plasma collecting organizations. We also find that AABB's brief,
describing the development of its association's standards and
recommendations, does not improperly expand the factual record
developed in the trial court as contended by plaintiff. See DeLuna
v. St. Elizabeth's Hospital, , 76 (1992). Plaintiff's
motions to strike are accordingly denied.
Defendant requests that this court reverse the trial court's
judgment or, alternatively, remand for a new trial. After careful
consideration, we reverse the judgments of the appellate and
circuit courts and remand for a new trial.

BACKGROUND
UBS operates 20 blood centers in 19 states, including a center
in Chicago. UBS conducts mobile blood drives, collecting whole
human blood from volunteer donors at churches, schools, and places
of employment throughout the Chicago metropolitan area. UBS belongs
to that sector of the blood banking community which receives
donations from volunteers as opposed to the commercial sector which
depends on paid donors.
UBS is a member of the AABB, an association of blood banks and
blood banking professionals engaged in the collection of whole
blood from volunteer donors. AABB promulgates, establishes and
publishes standards and policies for the collection, processing and
distribution of blood, blood components and tissue by its members.
AABB also inspects and accredits its members based on compliance
with these standards and policies and issues advisory
recommendations and guidelines. Federal and state governments
generally accept AABB standards as authoritative.
Blood banks in general are regulated, inspected and licensed
by the FDA. (21 U.S.C. 321(g)(1)(B), 360(b) (1994); 42 U.S.C.
262(c), (d) (1994)). The Code of Federal Regulations also
requires that the suitability of a blood donor shall be determined
by or under the supervision of a qualified physician. See 21 C.F.R.
640.3(a) (1995). Illinois treats blood banking similarly. See 210
ILCS 25/2--125 (West 1994) (medical director of blood bank
administers its technical and scientific operations); 210 ILCS
25/7--108 (West 1994) (blood bank may collect only with consent of
donor and under direction or delegated direction of medical
director). Transfusion medicine is a recognized medical specialty
with specific board certification.
The initial spread of AIDS, a disease of unknown cause and
origin, presented detection challenges to the medical community
and, particularly, the blood banking community. AIDS in the United
States was first reported to the Centers for Disease Control (CDC)
in 1981. See 30 Morbidity and Mortality Weekly Report 250--52, 305-
-08 (June 5, July 3, 1981). AIDS's first known victims were male
homosexuals and intravenous drug abusers. See generally Kozop v.
Georgetown University, (D.D.C. 1987), aff'd in
part & vacated in part, 851 F.2d 437 (D.C. Cir. 1988). By July
1982, after three hemophiliacs contracted AIDS, CDC hypothesized
that the disease was possibly transmitted through blood products.
31 Morbidity and Mortality Weekly Report 365, 366 (July 16, 1982).
At that time, no consensus was reached nor were recommendations
developed regarding that possibility among the various concerned
government public health organizations and the blood banking
community. Comment, Allocating the Costs of Transfusion--AIDS: An
Oregon Perspective, 73 Or. L. Rev. 1057, 1061 (1994); Kozop, 663 F. Supp. at 1051.
By January 1983, academics, physicians, government public
health organizations and members of the blood banking community met
as a workgroup to consider opportunities for preventing AIDS, posed
by person-to-person contact and by blood. In the absence of a
laboratory test that could detect the AIDS virus in blood, the
workgroup addressed the public health imperative of balancing the
risk of AIDS against the impact screening measures might have on
the nation's blood supply.
In the area of AIDS transmission by blood, the workgroup
considered the benefits and risks posed by several screening
options. Educating volunteer donors to self-defer was considered
generally effective because such persons were known to be
altruistic. Directly questioning donors regarding their sexual
preferences and habits was believed to carry the risk of offending
and discouraging low-risk donors, while also possibly ineffectively
screening dishonest or alienated at-risk donors, which could
adversely result in a decreased national blood supply. Donations by
friends and family to specific recipients was not recommended by
blood banking physicians because such persons are often pressured
and, under such circumstances, might be less likely to admit high-
risk behavior. Finally, several laboratory tests, known as
surrogate tests, were between 66% and 88% effective in ultimately
identifying HIV-infected donors, but they also had a 5% false
positive rate, resulting in the rejection of safe blood. The tests
also increased the price of collection and distribution of blood
products.
The workgroup reached no consensus regarding the best method
to effectively exclude high-risk donors. At the time, there were 11
possible reported cases of AIDS related to transmission by blood
and blood products. Kozop, 663 F. Supp. at 1051.
Shortly thereafter, major blood banking organizations and
associations with assistance from the National Gay Task Force, the
National Hemophilia Foundation and government public health
representatives issued the first in a series of joint statements
relating to the transmission of AIDS. Kozop, 663 F. Supp. at 1052.
The statement recommended that blood screening include questioning
donors to detect possible AIDS or exposure to persons with AIDS. 73
Or. L. Rev. at 1062-63.
The United States Public Health Service Committee, comprised
of federal government public health organizations and the FDA,
similarly recommended that blood banks screen by educating donors
with information pamphlets describing high-risk groups so that
potential at-risk donors might exclude themselves. 32 Morbidity and
Mortality Weekly Report 101-04 (March 4, 1983). The FDA also
individually recommended voluntary self-deferral by potential at-
risk donors. The FDA recommended, as well, improved educational
programs for blood bank personnel to enable them to better assist
donors in recognizing AIDS symptoms.
UBS revised its procedures, taking the course generally
recommended by these governmental agencies and blood banking
community associations and organizations, which did not include
directed donations, surrogate tests or direct questioning of
potential donors regarding their sexual preferences and habits.
Conclusive proof that the AIDS virus was transmittable through
blood was first published in January 1984. J. Curran, Acquired
Immune Deficiency Syndrome (AIDS) Associated with Transfusions, 310
New Eng. J. Med. 69, 70 (1984); Kozop, 663 F. Supp. at 1052. In
February 1984, with one exception, none of the volunteer blood
banks in the United States, including those operated by government
public health agencies, screened donated blood with a surrogate
test for AIDS. One university blood bank experimentally screened
using the T-cell ratio test. No volunteer blood bank in the United
States used the hepatitis B core antibody surrogate test, the test
urged by plaintiff here.
On February 11, 1984, UBS collected a unit of HIV-contaminated
blood from a donor, anonymously referred to as "John Donor," at a
volunteer blood drive held at a Catholic parish on Chicago's
southwest side. Later that month, the blood was transfused to the
deceased during open-heart bypass surgery at Illinois Masonic
Medical Center. Plaintiff alleged that defendant negligently failed
to screen the HIV-contaminated blood, resulting in the deceased's
contraction of AIDS and his eventual death, some four years
following the February 1984 transfusion.
Specifically, plaintiff alleged that UBS inadequately educated
donors about high-risk behavior for AIDS exposure; did not conduct
the blood drive properly; did not directly question donors about
their sexual preferences or sexual practices; and did not implement
surrogate tests, before February 1984, although allegedly one test,
the hepatitis B core antibody test, was proven effective in
screening at-risk donors.

ISSUES
We are asked to decide whether: (1) the trial court properly
construed section 3 and applied the proper standard of care; (2)
plaintiff proved proximate cause; (3) plaintiff's expert witnesses'
testimony exceeded their permissible scope; and (4) UBS was
entitled to judgment due to the barring of plaintiff's Survival Act
claim for failure to meet statute of limitations filing
requirements.

STANDARD OF REVIEW
Statutory construction is a question of law, and a reviewing
court will interpret a statute pursuant to its own judgment,
independent of, and not deferential to, that of the trial court.
See Arca v. Colonial Bank & Trust Co., 265 Ill. App. 3d 498 (1994);
Mellon Bank, N.A. v. Midwest Bank & Trust Co., 265 Ill. App. 3d 859
(1993). Similarly, where facts are not disputed, a reviewing court
may determine a question concerning limitations as a matter of law.

SECTION 3 OF BLOOD SHIELD ACT
In order that there may be negligence or actionable
negligence, there must be a legal duty to exercise care in favor of
the person injured, a breach of such duty, and injury proximately
caused by that breach. See Curatola v. Village of Niles, (1993). Section 3 of the Blood Shield Act, "Imposition of
liability," imposes a legal duty upon blood banks and their staffs
by stating:
"Every person, firm or corporation involved in the
rendition of any of the services described in Section 2
warrants to the person, firm or corporation receiving the
service and to the ultimate recipient that he has
exercised due care and followed professional standards of
care in providing the service according to the current
state of the medical arts." (Emphasis added.) Ill. Rev.
Stat. 1983, ch. 111«, par. 5103.

ANALYSIS
I
Construction of Section 3--Standard of Care
UBS claims that the trial and appellate courts erroneously
interpreted section 3 to allow UBS's conduct to be measured against
an ordinary reasonableness negligence standard of care. UBS
generally interprets section 3 as imposing an overriding obligation
to adhere to "professional standards of care" and a secondary
obligation to exercise "due care" in the conduct which conforms to
those standards. UBS claims that where professional standards of
care are duly adhered to, negligence liability does not arise.
Plaintiff, on the other hand, claims that the interpretation
of section 3 adopted by the trial court and affirmed by the
appellate majority is correct. That is, under the express terms of
section 3, compliance with professional standards is not the sole
inquiry; if professional "standards" or rules are themselves
inadequate to constitute due care, then compliance with them does
not satisfy the statutory standard of care. Plaintiff generally
interprets section 3 as imposing an overriding obligation to
exercise due care and a subordinate obligation to follow
professional "standards," as in "rules."
Essentially, the controversy concerns whether section 3 of the
Blood Shield Act contemplates a professional standard of care or an
ordinary, reasonableness standard of care, and whether satisfaction
of professional standards of care constitutes the lack of
negligence. See Comments, Blood Bank Liability to Recipients of HIV
Contaminated Blood, 18 U. Dayton L. Rev. 87, 98 nn. 100, 101
(1992).
Initial reference to the underlying procedural background of
this case is helpful. Prior to trial, UBS moved for summary
judgment. UBS argued, inter alia, that it had adhered to prevailing
professional standards of care at the time of John Donor's blood
donation. In opposing the motion, plaintiff relied on HIV-blood-
transfusion decisions from other jurisdictions which rejected a
professional negligence standard of care in favor of an ordinary
negligence standard of care. See Doe v. American National Red
Cross, , 306 (E.D.N.C. 1992) (interpreting
statutory provision stating, "[i]n the selection of donors due care
shall be exercised," to constitute ordinary negligence standard of
care). The trial court found that section 3 expressed a due care
"standard." The trial court denied UBS's motion, interpreting
section 3 to require a blood bank to exercise due care and "fill
[sic] professional standards."
The trial court also ruled prior to trial that evidence
regarding the conduct of blood plasma centers that pay donors for
blood was not admissible to show whether UBS's conduct was
reasonable. However, over UBS's objections, some evidence was
admitted pertaining to the conduct of blood plasma centers in order
to show notice to UBS of alternative procedures and their
feasibility.
On the eve of trial, plaintiff moved to confirm the applicable
standard of care. In the motion, plaintiff requested that the
court, in accord with its prior determination, "admit evidence and
instruct the jury according to the appropriate legal standards."
UBS, too, sought a statement of the applicable standard of care by
a motion in limine. Once again, UBS argued that section 3 imposed
a professional standard of care on blood banks. The trial court
ruled that the standard of care applicable at trial to UBS's
conduct would be that of a reasonably careful blood bank under
similar circumstances.
At trial, over UBS's objection, Dr. E. Conant and Dr. Marcus
Francis were allowed to testify as experts concerning the standard
of care for blood banks in 1984. Dr. Conant was a dermatologist,
who chaired the California Task Force on AIDS. At the time of
trial, Dr. Conant had treated about 5,000 AIDS patients and had
studied, written and presented extensively regarding AIDS
transmission. Dr. Conant had no experience in blood banking
medicine, except for a part-time job in medical school prior to the
AIDS epidemic. Conant did not belong to any professional blood
banking association and, on more than one occasion, had been
prevented by courts from testifying because he was not an expert in
blood banking. Dr. Francis was a epidemiologist and virologist
formerly employed by the CDC. Dr. Francis had no experience in
blood banking, nor did he belong to any professional blood banking
organization. Initially, the trial court ruled that Dr. Francis
could not testify concerning the standard of care, but dispensed
with this limitation over UBS's objections. Dr. Francis testified,
inter alia, about methods he believed were available to blood banks
to prevent the spread of AIDS. Dr. Francis also testified that a
blood donor would cooperate when directly questioned regarding
sexual practices.
At the close of evidence, the court instructed the jury that
UBS had a duty to use "due care for the safety of the plaintiff."
The trial court defined "due care" as:
"the care that would be used by reasonably careful blood
banks under circumstances similar to those shown by the
evidence at and prior to the time Ronaldo Advincula
contracted the HIV virus. The law does not say how
reasonably careful blood banks would act under the
circumstances. That is for you to decide."
Cf. Illinois Jury Pattern Instructions, Civil, No. 10.02 (3d ed.
1989) (hereinafter IPI Civil 3d).
The jury was additionally instructed:
"In determining whether the defendant exercised due care
under the circumstances you may consider:
a. whether defendant complied with its own internal
policies and procedures;
b. the knowledge and methods available at and prior
to February 1984 to educate and screen donors and test
blood;
c. the practices and procedures of the blood banking
industry for screening donors and testing blood;
d. the government's recommendations and guidelines
governing the collection and processing and distribution
of blood and blood products."
Cf. IPI Civil 3d No. 105.03.01.
In this court, each party specifically argues that the plain
language of section 3 supports its interpretation. UBS claims that
the provision's end phrase, "according to the current state of the
medical arts," modifies the dual obligation to both "exercise[ ]
due care" and "follow[ ] professional standards of care." Ill. Rev.
Stat. 1983, ch. 111«, par. 5103. As one amicus curiae states it,
"[t]he overarching reference to the `current state of the medical
arts' makes clear that the legislature intended negligence actions
against blood banks and blood and plasma processors to be governed
by a professional standard of care and that blood providers must
exercise due care in conforming to that standard."
Like UBS, plaintiff also argues that the express terms of
section 3 impose dual obligations, but she interprets the phrase
"follow[ ] professional standards of care" as professional rules,
not legal standards of care. Plaintiff claims that UBS's
interpretation renders superfluous the first obligation, "to
exercise due care," which result violates a basic statutory
construction principle.
The primary rule of statutory construction is to give effect
to the true intent of the legislature and inquiry into legislative
intent must begin with the language of the statute. People v. Lowe,
(1992). In order to determine legislative intent,
a statute must be read as a whole and all relevant parts must be
considered by the court. See Bonaguro v. County Officers Electoral
Board, (1994).
In doing so, courts must give statutory language its plain and
ordinary meaning. See People v. Brandon, (1994). A
term of well-known legal significance can be presumed to have that
meaning in a statute. See Harris v. Manor Healthcare Corp., (1986). Also, common law meanings of words and terms
may be assumed to apply in statutes dealing with new or different
subject matter, to the extent that they appear fitting and absent
evidence indicating a contrary meaning. 2B N. Singer, Sutherland on
Statutory Construction 50.3, at 103 (5th ed 1992). Equipped with
these principles, we examine the disputed language, "exercised due
care and followed professional standards of care in providing the
service according to the current state of the medical arts."
A commonly accepted definition of "due care" is:
"[j]ust, proper, and sufficient care, so far as the
circumstances demand; the absence of negligence. That
degree of care that a reasonable person can be expected
to exercise ***. That care which an ordinarily prudent
person would have exercised under the same or similar
circumstances." Black's Law Dictionary 499 (6th ed.
1990).
See also 28 Ill. L. & Prac. Negligence 25, at 24 (1957) ("due
care" often used as a controvertible term with "reasonable care"
and "ordinary care"); Langston v. Chicago & Northwestern Ry. Co.,
330 Ill. App. 260 (1946) (same), aff'd, 398 Ill. 248 (1947).
Webster's Third New International Dictionary 1811 (1986).
"Profession" is commonly defined as a vocation or occupation that
requires advanced education and training and involves intellectual
skills, such as medicine, law, theology, engineering, teaching,
etc. See Webster's New World Dictionary 1134 (2d Coll. ed. 1974);
see also Webster's Third International Dictionary 1811 (1986).
The term "standard of care" is one of legal significance. In
common law negligence theory, a standard of care is generally
understood to mean a measure or rule against which a defendant's
conduct is to be measured. See W. Keeton, Prosser & Keeton on Torts
31, 32 (5th ed. 1984); see also 28 Ill. L. & Prac. Negligence
25, 24 (1957). Black's defines "standard of care" as "the degree
of care" which a reasonably prudent person should exercise in the
same or similar circumstances. Black's also states that in medical,
legal, etc., malpractice cases, a standard of care is applied to
measure the competence of the professional. Black's Law Dictionary
1404-05 (6th ed. 1990).

The rule that courts must not disregard the plain language of
a statute operates only when the statute under consideration is
free from apparent ambiguity. See People v. Drakeford, (1990); see also Roche v. City of Chicago,
(N.D. Ill. 1993) (court may only look beyond statutory language
where it is ambiguous or inconclusive, or a literal interpretation
would lead to absurd result), aff'd, 24 F.3d 882 (7th Cir. 1994).
A statute is ambiguous when it is capable of being understood by
reasonably well-informed persons in two or more different senses,
thus warranting the consideration of other sources to ascertain the
legislative intent. See People v. Jameson, (1994).
If one relies only on commonly accepted and understood
meanings, section 3 appears ambiguous, seemingly indicating that a
blood bank's conduct is to be measured both by a lay, reasonable
person standard of care and by professional standards of care.
"And" joins "exercised due care" with "followed professional
standards of care," indicating that the two phrases are additional
to one another and implying that they are also grammatically
coordinate. Black's Law Dictionary 86 (6th ed. 1990); see also
Coalition for Political Honesty v. State Board of Elections, , 465 (1976).
Further, under section 3, blood banks make both warranties
while "providing the service according to the current state of the
medical arts." Without any resolution concerning the intended
operation of the two warranties, it is impossible to determine
exactly what this qualifying phrase means. We conclude that section
3 is therefore ambiguous and requires construction.
Valuable construction aids in interpreting an ambiguous
statute are the provision's legislative history and debates, and
the purposes and underlying policies. See 2A N. Singer, Sutherland
on Statutory Construction 48.02, 48.13, at 308, 356 (5th ed.
1992); Brown v. Kirk, , 152-53 (1976).
The legislative history of the Blood and Organ Transaction
Liability Act is not available, unfortunately, as a record. Pub.
Act 77--184, eff. July 2, 1971. However, it is well known that the
Act was enacted in response to Cunningham v. MacNeal Memorial
Hospital, (1970). See Hill v. Jackson Park Hospital,
39 Ill. App. 3d 223 (1976). Cunningham held that whole blood is a
"product" for purposes of strict tort liability. Cunningham, 47 Ill. 2d at 447. The legislature responded by restricting the
liability of blood, human organ and tissue service providers to
instances of negligence and willful misconduct.
Section 2, "Limitation of liability," fully accomplishes that
end by eliminating the strict liability exposure of such persons
and organizations with the statement that the "procuring,
furnishing, donating, processing, distributing or using" of human
whole blood, plasma, blood derivatives, human organs and tissue for
purposes of injection, transfusion, or transplantation in a human
body is the "rendition of a service" for purposes of tort and
contract liability. Ill. Rev. Stat. 1983, ch. 111«, par. 5102.
A review of section 1, "Declaration of public policy," is also
instructive. Section 1 states:
"[The] availability of scientific knowledge, skills
and materials for the purpose of injecting, transfusing
or transplanting human whole blood, plasma, blood
products, blood derivatives and *** [other] organs or
other human tissue is important to the health and welfare
of the people of this State. The imposition of legal
liability without fault upon the persons and
organizations engaged in such scientific procedures
inhibits the exercise of sound medical judgment and
restricts the availability of important scientific
knowledge, skills and materials." (Emphasis added.) Ill.
Rev. Stat. 1983, ch. 111«, par. 5101.
The provision continues, declaring the state's policy to limit
liability to negligence and willful conduct and referring, again,
to the processes of making such materials available for human use
as "scientific procedures." Ill. Rev. Stat. 1983, ch. 111«, par.
5101.
As expressly stated in section 1, the legislature viewed the
persons and organizations engaged in "scientific procedures" as
exercising "medical judgment" which would be inhibited by the
imposition of strict liability. The legislature also expressly
stated its belief that the availability of "important scientific
knowledge" and "skills" would be restricted by such an imposition.
Ill. Rev. Stat. 1983, ch. 111«, par. 5101. See also Hill v. Jackson
Park Hospital, 39 Ill. App. 3d 223, 225 (1976) (Act serves to
prevent "chilling effect" on the "exercise of sound medical
judgment"); Glass v. Ingalls Memorial Hospital, 32 Ill. App. 3d
237, 241 (1975) (Act ensures that strict liability will not
"impinge on the exercise of sound medical judgment in a field where
an individual's life might be at stake"). These clear expressions
reveal the legislative view concerning the types of judgments
involved in blood banking as well as the level of expertise
attendant to these "scientific procedures." Any construction of
section 3 must be consistent with these expressions of the Act's
purpose. See People v. Burpo, (1995) (statute
should be given construction that is consistent with purposes and
policies of the statutes).
Moreover, the legislature apparently deemed it necessary to
enact section 3, a provision which imposes a particular form of
statutory liability apart from existing common law negligence
liability, despite that the Act's express purpose was fully
accomplished by section 2. Accepting the express purpose of the
Act, there was no need for the legislature to go beyond section 2
in crafting a specific statutory liability for blood service
providers; existing common law negligence standards of care would
have sufficed.
During legislative debates concerning a subsequent amendment
to section 3 (see Pub. Act 78--31, eff. June 22, 1973), one
legislator expressed his understanding that a basis for the "Blood
Labeling Bills" was a past shortage of blood to the extent that
physicians had to sometimes rely on purchased blood. The legislator
additionally stated that "certain protection" was given to
"[p]hysicians" and "[h]ospitals in that they are acting in good
faith and exercising due care in the transfer of blood to the
extent that it is *** possible to know the blood [sic] and
uncontaminated." 78th Ill. Gen. Assem., House Proceedings, June 13,
1973, at 67-68 (statements of Representative Lauer) (extending the
waiver of strict liability from July 1, 1973, to July 1, 1976). We
glean from these statements only that legislators assumed that
blood transferors, referred to as physicians and hospitals, were
shielded under the law because they act in good faith and exercise
due care in transferring blood to the extent of their knowledge.
An additional statutory construction aid is the common law.
The common law, having been classified and arranged into a logical
system of doctrine, principles, rules and practices, furnishes one
of the most reliable backgrounds upon which analysis of the objects
and purposes of a statute can be determined. Tyrrell Gravel Co. v.
Carradus, 250 Ill. App. 3d 817 (1993); see also 2B N. Singer,
Sutherland on Statutory Construction 50.01, at 90 (5th ed. 1992).
It is appropriate then to rely on that body of law to interpret
section 3. See In re Balay, 113 B.R. 429 (N.D. Ill. 1990) (statute
should be construed so that it may be given effect and is consonant
with the common law.
In Illinois, the basic standard of care in instances of
negligence is that of the "ordinarily careful person" (see IPI
Civil 3d No. 10.02) or "reasonably prudent" person (Cunis v.
Brennan, , 376 (1974)). This basic formulation
reflects the community's demand for a standard that is external and
objective. To be complete, however, a standard of care must also be
subjective, in that it makes proper allowance for the actor's
capacity to meet the risk apparent to him, and the circumstances
under which he must act. See W. Keeton, Prosser & Keeton on Torts
32, at 173 (6th ed. 1995).
Accordingly, the basic reasonable person standard allows for
and incorporates the physical characteristics of the defendant,
himself. See W. Keeton, Prosser & Keeton on Torts 32, at 175 (6th
ed. 1995); W. Curran, Professional Negligence--Some General
Comments, 12 Vand. L. Rev. 535, 536-37 (June 1959). Other
"circumstances" may be similarly incorporated into the reasonable
person standard. See W. Keeton, Prosser & Keeton on Torts 32, at
179 n.47 (6th ed. 1995) (citing Lewis v. Northern Illinois Gas Co.,
97 Ill. App. 3d 227 (1981), as applying standard of care that child
of actor's age, intelligence, capacity and experience would
exercise).
The professional standard of care accomplishes this
incorporation of certain subjective qualities and circumstances.
Professionals are held to a particularized form of the basic
reasonable person standard because in addition to that degree of
care, they are expected to possess a higher degree of skill, care,
and learning than the average person. The common statement that due
care is the degree of care that a reasonable person is bound to
exercise is thus only a statement of the general negligence
standard of conduct or duty in its most basic terms. Professionals,
in general, are required not only to exercise reasonable care
(i.e., due care) in what they do, but also to possess and exercise
a standard minimum of special knowledge and ability. See W. Keeton,
Prosser & Keeton on Torts 32, at 185 (6th ed. 1995); see also
Miller v. DeWitt, 59 Ill. App. 2d 38 (1965) (while architect has
duty to act with reasonable care and diligence, the skill and
ability that an architect is bound to exercise is that ordinarily
required of architects).
In Illinois, the established standard of care for all
professionals is stated as the use of the same degree of knowledge,
skill and ability as an ordinarily careful professional would
exercise under similar circumstances. Taake v. WHGK, Inc., 228 Ill.
App. 3d 692, 708 (1992) (same general standard of care applies to
all professionals, including architects); Eaves v. Hyster Co., 244
Ill. App. 3d 260, 264 (1993) (referring to IPI Civil 3d Nos.
105.01, 105.02, as applying to all professionals and requiring all
professionals to apply same degree of knowledge, skill and ability
as an ordinarily careful professional would exercise under similar
circumstances); see also Restatement (Second) of Torts 299A, at 73
(1965). This standard of care is utilized to measure the conduct of
a wide variety of both medical and nonmedical professions. See
Barth v. Reagan, , 407 (1990) (attorneys); Purtill
v. Hess, , 241-42 (1986) (physicians); Dolan v.
Galluzzo, , 281 (1979) (podiatric practitioner);
Rosenberg v. Miller, 247 Ill. App. 3d 1023, 1028-29 (1993)
(dentists); Margolies v. Landy & Rothbaum, 136 Ill. App. 3d 635,
638 (1985) (accountants); Horak v. Biris, 130 Ill. App. 3d 140
(1985) (social workers). The standard recognizes that lay jurors
are not equipped to determine what constitutes reasonable care in
professional conduct without measuring the actor's conduct against
that of other professionals. See generally W. Keeton, Prosser &
Keeton on Torts 32 (6th ed. 1995); see also Walski v. Tiesenga, , 261-62. (1978).
Parenthetically, we note that in professional negligence
cases, unlike negligence actions in general, the plaintiff bears a
burden to establish the standard of care through expert witness
testimony. See Barth, ; Walski, 72 Ill. 2d at 256;
Ohligschlager v. Proctor Community Hospital, (1973);
see also IPI Civil 3d No. 105.01 (requiring expert witness
testimony or other evidence of professional standards to prove
professional standard of care). Moreover, a plaintiff does not
discharge this burden of proof by merely presenting expert
testimony which offers an opinion as to correct procedure or which
suggests, without more, that the witness would have conducted
himself differently than the defendant. The expert must base his
opinion upon recognized standards of competency in his profession.
A difference of opinion between acceptable but alternative courses
of conduct is not inconsistent with the exercise of due care. See
York v. Stiefel, 109 Ill. App. 3d 342, 350 (1982).
In instances, however, where the professional's conduct is so
grossly negligent or the treatment so common that a layperson could
readily appraise it, no professional expert testimony or other such
relevant evidence is required. See Barth, 139 Ill. 2d at 407-08;
Walski, 72 Ill. 2d at 256.
It remains the case, however, that while professional conduct
in Illinois will be measured against a professional standard, all
persons, including professionals, both medical and nonmedical, are
also obligated, generally, to exercise due care or ordinary care,
commensurate with the apparent risk. See O'Hara v. Holy Cross
Hospital, , 342 (1990); Walski, 72 Ill. 2d at 261;
Knight v. Haydary, 223 Ill. App. 3d 564, 571 (1992); Curry v.
Summer, 136 Ill. App. 3d 468, 477 (1985); see also W. Keeton,
Prosser & Keeton on Torts 32, at 185 (6th ed. 1995)
("[p]rofessional persons in general, and those who undertake any
work calling for special skill, are required not only to exercise
reasonable care in what they do, but also to possess a standard
minimum of special knowledge and ability"); W. Keeton, Prosser &
Keeton on Torts 53, at 356 (6th ed. 1995) (in negligence, duty is
always the same, to conform to legal standard of reasonable
conduct; what defendant must do or not do is question of standard
of conduct to satisfy duty).
Section 3 then represents no more than a classic statement of
the general duty to which every professional is answerable, to
exercise due care, and the particularized measure of his conduct,
by professional standard of care. We therefore conclude that, under
section 3, a blood bank's conduct is to be measured against
"professional standards of care" while the bank is bound to
exercise care which is due.
In arguing that section 3 contemplates merely a reasonableness
standard of care, plaintiff relies on authority that interprets the
term "due care" within a statute, to indicate a reasonableness
standard of care. See Doe, . Where no express
standard of care is otherwise indicated in a statute, this view may
not be incorrect. See Restatement (Second) of Torts 285, Comment
d, at 21 (1965). However, in section 3, our legislature has
expressly provided that a blood bank and its staff additionally
warrant to "follow[ ] professional standards of care." See
generally Restatement (Second) of Torts 285, Comment b, at 21
(1965). Moreover, based on the inclusion of this phrase in section
3, the term "due care" cannot be construed to indicate merely a
reasonableness standard of care without creating surplusage. If the
legislature had intended that merely a reasonableness standard of
care apply, there was no need to include the term "followed
professional standards of care." See Hirschfield v. Barrett, , 230 (1968) ("The presence of surplusage *** is not to
be presumed in statutory or constitutional construction [citation],
and *** each word, clause or sentence must, if possible, be given
some reasonable meaning").
Furthermore, by using the conjunction "and," the legislature
stated the phrase "professional standards of care" as though it
stood on equal footing with "due care." Yet, under the appellate
majority (274 Ill. App. 3d 573) and plaintiff's interpretation, the
phrase "professional standards of care" is made subordinate. We
further disagree with plaintiff that we should depart from accepted
statutory construction principles and view the phrase "professional
standards of care" to mean simply professional rules or standards.
Accepting plaintiff's view requires a drastic departure from the
accepted common law meaning of the term and renders the words "of
care" superfluous. Statutes should be construed, if possible, so
that no term is rendered superfluous or meaningless. Bonaguro v.
County Officers Electoral Board, (1994).
The parties also argued that the qualifying phrase, "in
providing the service according to the current state of the medical
arts," supports their respective positions regarding the standard
of care. Under the last antecedent doctrine, it is generally
accepted that a referential and qualifying phrase refers solely to
the last antecedent. In re Application for Judgment & Sale of
Delinquent Properties for the Tax Year 1989, , 169
(1995). The last antecedent is the last word, phrase or clause that
can be made an antecedent without impairing the meaning of the
sentence. See 1977 Ill. Att'y Gen. Op. 49.
In section 3, the last antecedent of the qualifying end
phrase, "in providing the service according to the current state of
the medical arts," is the phrase "followed professional standards
of care." Significantly, there is no punctuation setting this
qualifying phrase apart from the sentence which precedes it, which
might connote that the phrase was intended to modify more remote
terms. See 2A N. Singer, Sutherland on Statutory Construction
47.33, at 270 (5th ed. 1992). As a result, we construe the phrase
as referring to and qualifying only the immediately preceding
phrase, "followed professional standards of care."
The qualifying phrase apparently refers to the condition of
medical science and arts at the time that blood services are
provided. This comports with the larger sense of the Act because
the legislature viewed the processes involved in making blood
available as "scientific procedures" and the organizations and
persons involved in these procedures as exercising "medical
judgments." Also, in line with reliance on common law concepts as
construction aids, it is logical that an element of
contemporaneousness ("current state") qualifies norms of conduct.
Thus, applying the doctrine, blood services providers warrant to
follow professional standards of care in accord with the existing
condition of medical arts. Construed thusly, the qualifying phrase
assures that any professional standard of care is decided according
to the state of the art at the time of the injury, rather than
retrospectively.
Furthermore, use of the phrase "according to the current state
of the medical arts" by the legislature bears overall on the type
of standard of care contemplated by section 3. Use of these terms
indicates something other than merely an ordinary or reasonableness
standard of care.
Plaintiff argues, however, that section 3 may not be construed
to state the standard of care applied to all professionals in
Illinois, including medical professionals, because that would
contravene the common law as shown by Darling v. Charleston
Community Memorial Hospital, (1965). According to
plaintiff, a blood bank's conduct should be judged against the
standard of care applied to hospitals in Darling. See also IPI
Civil 3d No. 105.03.01.
The trial and appellate courts viewed the term "due care" in
section 3 to indicate the standard of care of a reasonably careful
person (cf. IPI Civil 3d No. 10.02) modified to accommodate UBS's
status as a blood bank. The resulting standard of care parallelled
the standard applicable to hospitals as health care institutions.
See Darling, .
Prior to Darling, a hospital faced negligence liability
exposure based only on ordinary negligence (Delling v. Lake View
Hospital Ass'n & Training School for Nurses, 310 Ill. App. 155
(1941)); the failure to use reasonable care in selection of staff
(Dayan v. Wood River Township Hospital, 18 Ill. App. 2d 263
(1958)); or on a theory of vicarious liability for the conduct of
employee or agent medical professionals (Stapler v. Brownstein, 261
Ill. App. 57 (1931)).
With Darling, this court recognized a new and independent duty
of hospitals to review and supervise the treatment of their
patients that is administrative or managerial in character. See
Darling, ; Greenberg v. Michael Reese Hospital, , 293 (1980) (duty concerns hospital's responsibilities
that are administrative or managerial); IPI Civil 3d No. 105.03.01,
Notes on Use (ordinarily, "this duty involves the hospital's own
management responsibility"); see also Johnson v. St. Bernard
Hospital, 79 Ill. App. 3d 709, 718 (1979) ("[i]t requires not
medical expertise, but administrative expertise, to enforce rules
and regulations" adopted to ensure smoothly run hospital and
adequate patient care); Pedroza v. Bryant, 101 Wash. 226, (1984) (Darling first introduced doctrine of hospital's
corporate negligence founded on responsibility to supervise and
review medical treatment provided by medical staff).
This duty has been found based on claims that a hospital
administrated X-ray therapy (see Greenberg, 83 Ill. 2d at 293);
failed to require treatment and consultation by specialists, and
failed to review physicians' qualifications and competencies
(Andrews v. Northwestern Memorial Hospital, 184 Ill. App. 3d 486,
489 (1989)); or failed to make available a specially trained nurse
for its nursery (Northern Trust Co. v. Louis A. Weiss Memorial
Hospital, 143 Ill. App. 3d 479 (1986)).
A hospital, in fulfilling this duty, must conform to the legal
standard of "reasonable conduct" in light of the apparent risk. See
Ohligschlager v. Proctor Community Hospital, , 420
(1973); Darling, 33 Ill. 2d at 331; see also IPI Civil 3d No.
105.03.01, Notes on Use ("a duty to exercise ordinary care"). What
a hospital must do to satisfy the duty is act as would a
"reasonably careful" hospital under circumstances similar to those
shown by the evidence. See IPI Civil 3d No. 105.03.01, Notes on Use
(directing the additional use of a modified IPI Civil 3d No.
10.02). Whether a hospital is reasonably careful may be shown by a
wide variety of evidence, including, but not limited to, expert
testimony, hospital bylaws, statutes, accreditation standards,
custom and community practice. Darling, ; Andrews v.
Northwestern Memorial Hospital, 184 Ill. App. 3d 486 (1989). When
IPI Civil 3d No. 10.02 is used to instruct a jury, as in the
present case, the jury is told that it decides how a reasonably
careful hospital would act. Thus, a hospital's conduct is measured
against what a lay jury considers reasonable under the
circumstances.
In contrast, the standard of care applied to hospitals in
cases based on their vicarious liability for the conduct of agent
or employee medical professionals remains the standard applied to
all professionals, i.e., to use that same degree of knowledge,
skill and ability as an ordinarily careful professional would
exercise under similar circumstances. See IPI Civil 3d No.
105.03.01, Notes on Use (directing that IPI Civil 3d No. 105.01 be
used rather than No. 105.03.01 in cases of vicarious liability for
the conduct of professionals). In contrast, also, to the duty
instruction used for hospital institutional negligence, the
traditional professional duty instruction directs the jury that it
may not attempt to assess a defendant's conduct from any personal
knowledge. See IPI Civil 3d Nos. 105.01, 105.02.
UBS views its development and implementation of a blood
screening policy in the face of AIDS as distinguished from the
administrative or managerial responsibilities carried out by
hospitals under Darling. UBS asserts that its allegedly negligent
conduct in developing policy and practices for screening the blood
supply concerned matters involving medical judgment. Plaintiff
responds that in Greenberg, 83 Ill. 2d at 293, a hospital case,
this court, applying the standard of care utilized in Darling,
acknowledged that such responsibilities involve medical judgment.
Plaintiff therefore concludes that the standard of care applied in
Darling and Greenberg must hold sway here.
Plaintiff additionally claims that the record here
demonstrates that a professional standard of care should not apply
under section 3. According to plaintiff, UBS's top corporate
officer had ultimate authority for its AIDS procedures; several of
UBS's donor screening and high-risk blood testing policies and
procedures were set forth in memoranda written by businessmen; the
blood drive at issue here was not conducted under the supervision
of a physician; and the person who screened John Donor was not a
licensed medical professional. Plaintiff claims that the fact that
UBS's medical director is a licensed physician should not convert
a negligence action against UBS as an entity into a professional
malpractice action.
The distinction between the legislature's approval of the
professional standard of care in section 3 as the measure of a
blood bank's allegedly negligent activities in collecting blood and
Darling's use of a reasonableness standard of care encompasses more
than the matter of medical judgment. Darling imposed negligence
liability upon health care institutions, including hospitals, that
had not existed previously under common law. The area of liability
recognized by Darling does not encompass, whatsoever, a hospital's
responsibility for the conduct of its agent or employee medical
professionals. By contrast, the statutory liability imposed by
section 3 upon human blood, organ and tissue service providers
("[e]very person, firm or corporation involved") in "procuring,
furnishing, donating, processing, distributing or using whole
blood" includes responsibility for the conduct of agent and
employee medical professionals. See Ill. Rev. Stat. 1983, ch. 111«,
pars. 5102, 5103. Notably, where a hospital is held responsible for
the conduct of its agent or employee medical professionals, under
vicarious liability, a hospital's conduct is measured, as in
section 3, against a professional standard of care.
Furthermore, the legislature was presumably aware of Darling
when it enacted the Blood Shield Act. See 2B N. Singer, Sutherland
on Statutory Construction 50.01, at 90 (5th ed. 1992). Yet,
despite Darling's creation of a form of negligence liability,
utilizing a reasonableness standard of care, and arguably
applicable to human blood, tissue and organ service provider
institutions, the legislature saw fit to enact both sections 2 and
3, setting out negligence liability with a different scope.
The fact that human blood, tissue and organ service providers
bear direct responsibility for the conduct of medical
professionals, and that hospitals, under Darling, do not, directly
implicates the standard of care against which their conduct may be
measured. As discussed previously, a professional standard of care
is traditionally utilized to judge professional conduct and
clearly, under the Act, the conduct of blood banks includes that of
its medical professional staff.
Moreover, the legislature also expressly recognized that the
actual activities of human blood, tissue and organ service
providers involves a level of "medical judgment" sufficient to
warrant statutory protection. See Ill. Rev. Stat. 1983, ch. 111«,
par. 5101. That the statutory protection curtailed the imposition
of strict liability, but not negligence liability, does not
diminish the legislature's view of the significance of medical
judgment in this arena. By contrast, Greenberg only reveals this
court's acknowledgment that part of a hospital's administration
involves medical judgment. Greenberg, 83 Ill. 2d at 293. The
Greenberg court made this acknowledgment within the confines of
rejecting the evidentiary rule which requires that adverse expert
witnesses, testifying to medical negligence, be licensed in the
same school of medicine as the defendant (see Dolan v. Galluzzo, (1979)). Greenberg, 83 Ill. 2d at 291-93.
Also, Darling arose from a consideration of the breadth of a
modern day hospital's operational realities. The court's discussion
in Darling and Greenberg illustrates this breadth:
"Present-day hospitals, as their manner of operation
plainly demonstrates, do far more than furnish facilities
for treatment. They regularly employ on a salary basis a
large staff of physicians, nurses and interns, as well as
administrative and manual workers, and they charge
patients for medical care and treatment, collecting for
such services, if necessary, by legal action." Darling,
33 Ill. 2d at 332.
Greenberg expanded on this theme, stating that a "modern hospital
*** is an amalgam of many individuals not all of whom are licensed
medical practitioners *** [and] it is clear that at times a
hospital functions far beyond the narrow sphere of medical
practice." Greenberg, 83 Ill. 2d at 293; see also Pedroza, 101 Wash. at 231, 677 P.2d at 169 (Darling's newly recognized "doctrine
of corporate negligence reflects public's perception of modern
hospital as multifaceted health care facility responsible for
quality of medical care and treatment rendered"); A. Southwick, The
Hospital as an Institution--Expanding Responsibilities Change its
Relationship with the Staff Physician, 9 Cal. W. L. Rev. 429, 429
(1973) (community hospital has evolved into corporate institution,
assuming "the role of a comprehensive health center ultimately
responsible for arranging and co-ordinating total health care").
Notably, it is the inherent diversity in hospital
administration which permits a broad range of evidence, including
expert witness testimony, administrative rules and regulations, to
establish the reasonableness standard of care, but does not call
necessarily for such proofs. This relationship contrasts with that
between professional conduct and proofs relevant to establish the
appropriate professional standard of care; such proofs in the form
of expert witness testimony or other evidence of professional
standards are generally required because they are generally
necessary to evaluate conduct which is likely arcane to lay jurors.
Cf. IPI Civil 3d Nos. 105.01, 105.03.01; Ellig v. Delnor Community
Hospital, 237 Ill. App. 3d 396, 414 (1992) (discussing probable
jury confusion resulting from use of IPI Civil 3d Nos. 105.01 and
105.03.01 together).
Unlike hospitals, blood service providers, within the purview
of the Act, engage in a rather finite range of medically focused
services ("procuring, furnishing, donating, processing,
distributing" human blood, bones, organs and tissues for
"injecting, transfusing or transplanting" within the human body).
Ill. Rev. Stat. 1983, ch. 111«, par. 5102. Clearly, these services
do not compare to the recognized broad range of administrative
activities of modern hospitals contemplated by Darling and its
progeny. Clearly, also, by their very nature, the services of such
blood providers, under the Act, more closely involve medical
judgments than do the diverse administrative and managerial
activities performed by hospitals.
Furthermore, even though administration may be necessarily a
part of a blood service provider's provision of services in a given
case, that fact does not argue against the construction of a
professional standard of care in section 3. As mentioned
previously, where conduct is within the "common knowledge" of a
jury, expert opinion testimony is not required to establish a
professional standard of care. See IPI Civil 3d No. 105.01, Notes
on Use.
We therefore conclude that the common law is not contravened
by construing section 3 to require application of a professional
standard of care to blood banks. That hospital administration
entails some matters involving medical judgment does not support a
construction of section 3 requiring a reasonableness standard of
care. There also exists sufficient distinctions between the
situations of hospitals and blood banks to warrant the conclusion
that Darling's reasonableness standard of care need not be the
standard of care intended by the legislature in section 3. We are
convinced that common law considerations and the terms of the Blood
Shield Act establish that conduct within the Act's purview was
intended to be evaluated against the standard of care applicable to
professional conduct.
Neither are we persuaded that the instant case demonstrates
that a construction of section 3 requiring the professional
standard of care is ill-founded. While the announcement of UBS's
policy and procedural decisions regarding the screening of donated
blood was disseminated via corporate memoranda and the screening
procedures at the instant blood drive were conducted by
nonprofessionals, the corporate decisions and implementation of
procedures yet resulted from initial review by UBS's medical
director, Dr. Earnest Simon. Dr. Simon's judgments concerned
developing an effective methodology for procuring an adequate human
blood supply for the nation balanced against the unknown risks of
a highly infectious, newly discovered, and fatal disease. As such,
Dr. Simon's judgments required the balancing of competing medical
policies and procedures and was an exercise of medical judgment
with vast public health implications. We are not prepared to say
that such undertakings did not involve medical judgments as
compared against, for example, a hospital's administration of X-ray
therapy, which plaintiff here relies on as a medical judgment. In
this case, the record reflects that UBS's decision to refrain from
possibly premature or ill-advised surrogate testing and to employ
education and self-deferral of donors as opposed to directly
questioning them about their sexual preferences involved scientific
and professional judgments contemplated by the Act.
The application of a professional standard of care to the
conduct of blood banking organizations in collecting blood comports
with a majority of jurisdictions which have considered this issue,
in a variety of contexts. See Brown v. United Blood Services, 109
Nev. 758, 766, , 396 (1993) (joining a "clear and
growing consensus of jurisdictions" that view production and
safeguarding of nation's blood supply as professional activity,
entitled to professional standard of care); Giorno v. Temple
University Hospital, (E.D. Pa. 1995); Doe v.
American National Red Cross, (S.D. W. Va. 1994);
Smith v. Paslode Corp., (E.D. Mo. 1992), aff'd in
part & rev'd in part, 7 F.3d 116 (8th Cir. 1993); Smythe v.
American Red Cross Blood Services Northeastern New York Region, (N.D. N.Y. 1992); Zaccone v. American Red Cross, (N.D. Ohio 1994); Seitzinger v. American Red Cross,
Nos. 90--0046, 90--3890 cons. (E.D. Pa. November 30, 1992) (mem.);
Wilson v. American Red Cross, (Ala. 1992); Spann v.
Irwin Memorial Blood Centers, , (1995); Wilson v. Irwin Memorial Blood Bank, , 1317, , 518 (1993); Osborn v. Irwin
Memorial Blood Bank, ,
(1992); United Blood Services v. Quintana, (Colo.
1992); Bradway v. American National Red Cross, 263 Ga. 19, (1993); Anonymous Blood Recipient v. William Beamont
Hospital & Southeastern Michigan Chapter American Red Cross, No.
89--363705--NH (Cir. Ct. Oakland County, Mi. 1991); Doe v. American
Red Cross Blood Services, 297 S.C. 430, (1989); but
see Kozop v. Georgetown University, (D.D.C.
1987); Snyder v. American Ass'n of Blood Banks & Mekhjian, 144 N.J.
269, 676 A.2d 1036 (1996); Gilmore v. St. Anthony Hospital, (Okla. 1979);
The Brown court explained very well the rationale for viewing
blood banking as a profession:
"We are convinced that determinations concerning the
testing of donated blood and the exclusion of categories
of donors are better suited to professionally-trained
members of the industry rather than laypersons. Such
determinations require professional expertise in adopting
procedures necessary for securing healthy blood and blood
products without dangerously impacting the availability
of adequate blood supplies." Brown, 109 Nev. at 766, 858 P.2d at 396.
Finally, UBS makes the argument that under the terms of
section 3, only the noncompliance with professional standards of
care can give rise to liability. UBS asserts that a blood bank
warrants to exercise due care "in following" the standards of the
profession which are each in accord with the current state of the
medical arts. UBS posits that use of such language indicates that
custom and practice within the profession are therefore conclusive
of the entire duty owed.
UBS's argument requires that the word "in" be inserted into
the phrase "followed professional standards of care." Introducing
this word creates the impression that the entire measure of "due
care" is found by "following professional standards of care." We
reject this interpretation, finding no indication, whatsoever,
within section 3 that following professional standards of care
fulfills the general duty to exercise "due care."
In the absence of any such indication within section 3, we
again turn to the common law as a construction aid to determine
whether the legislature intended that conformance to professional
standards of care necessarily satisfies a blood bank's entire duty.
In the area of ordinary negligence as well as in professional
negligence, including hospital institutional negligence, custom and
practice play a significant role. Generally speaking, custom and
practice assist in determining the standard of care, whether the
standard is that of a layperson, a health care institution, or a
professional. Barth v. Reagan, (1990) (attorney's
professional negligence); Darling, 33 Ill. 2d at 331 (hospital
institutional negligence); Walski v. Tiesenga,
(1978) (medical professional negligence); Denniston v. Skelly Oil
Co., 47 Ill. App. 3d 1054 (1977) (ordinary negligence); Martin v.
Central Engineering Co., 350 Ill. App. 589 (1953) (engineer's
professional negligence).
In Illinois negligence law, while custom and practice can
assist in determining what is proper conduct, they are not
conclusive necessarily of it. See Darling, 33 Ill. 2d at 331-32
(health care institutional negligence); Petrowsky v. Family Service
of Decatur, Inc., 165 Ill. App. 3d 32 (1987) (negligence claim
against adoption agency). This precept holds true even in the area
of medical professional negligence. In a professional malpractice
case, where expert testimony is required to establish the requisite
professional standard of care, evidence that a defendant's conduct
conformed with local usage or general custom indicates due care,
but may not be conclusive of it. Such evidence may be overcome by
contrary expert testimony (or its equivalent) that the prevailing
professional standard of care, itself, constitutes negligence. See
Chiero v. Chicago Osteopathic Hospital, 74 Ill. App. 3d 166 (1979);
Lundahl v. Rockford Memorial Hospital Ass'n, 93 Ill. App. 2d 461
(1968)); but see Sheahan v. Dexter, 136 Ill. App. 3d 241, 248
(1985). Under Illinois common law, although uncommon, parties may
dispute both the prevailing professional standard of care (see
Wilsman v. Sloniewicz, 172 Ill App. 3d 492 (1988)) and whether the
prevailing professional standard was deficient (see T. LeBlang & W.
Bonantra, The Law of Medical Practice in Illinois 4:13, at 425-26
(1986)). This does not mean that such professionals (or blood
handlers) are therefore subjected to both a professional standard
of care and a lay reasonableness standard of care. It means that,
ultimately, the professional standard must be one which provides
care which is due or reasonable. This means that the professional
standard of care, itself, must be shown to be sufficient or lacking
in this regard by means of expert testimony or other relevant
proofs, but not that the defendant's conduct be measured against
what a lay jury considers as reasonable. While the Act did away
with common law strict liability, there is no indication within the
statute that the legislature intended to further deviate in this
area from the common law.
Accordingly, we hold that, under section 3, conformance with
professional standards of care, proven by expert testimony or other
evidence of professional standards, is indicative but not
conclusive of due care. Such evidence may be overcome by a
sufficient showing of contrary expert opinion testimony (or its
equivalent) that the prevailing professional custom or usage itself
constitutes negligence. See Chiero, 74 Ill. App. 3d at 174.
Our construction of section 3 comports with rules adopted in
this area by courts in other jurisdictions. See United Blood
Services v. Quintana, (Colo. 1992) (while defendant
blood bank judged by professional standard of care imposed under
blood shield statute, evidence of compliance not conclusive proof
of "due care"); Doe v. American National Red Cross, (S.D.W. Va. 1994) (professional standard of care applied, but
not conclusive of "due care").
UBS makes one final claim, however, that permitting a jury to
find professional standards to be themselves negligent, as urged by
plaintiff, allows for the imposition of strict liability, contrary
to the express legislative intent in section 3. According to UBS's
"strict liability" argument, if a blood bank conforms to
"professional standards" by refraining from using unproven
surrogate testing, it may nonetheless be found negligent under a
conflicting "due care" standard of care for failing to institute
such tests.
UBS's "strict liability" argument presupposes an incorrect
construction of section 3 premised on a conflict between the
phrases "followed due care" and "exercised professional standards
of care." As previously discussed, a proper construction of section
3 reveals that these two phrases do not conflict. Thus, we disagree
with UBS that section 3 allows for the imposition of strict
liability.
The construction of the disputed language in section 3 is
complete. Based on the express statement in section 3 that blood
service providers warrant that they have "follow[ed] professional
standards of care," the statute as a whole, and statutory
construction principles, we conclude that the legislature intended
that a blood bank's conduct be measured against a professional
standard of care. Section 3 does not allow a blood bank's conduct
to be measured against merely a lay reasonableness standard of
care. Blood banks must nonetheless generally exercise that degree
of care known as due care.
Section 3 simply does not indicate, nor does Illinois common
law agree, that conforming to professional standards of care in all
instances equates with due care.
Our decision regarding this issue requires reversal and remand
for retrial. See Tankersley v. Peabody Coal Co., ,
501 (1964); see also Lazarus v. Pascucci, 74 Ill. App. 3d 633, 640
(1979). The trial court misinterpreted section 3 to allow for
application of merely a reasonableness standard of care, rather
than a professional standard of care. In this case, despite that
expert opinion testimony was presented and that UBS's conduct was
measured against similar entities, the jury was free to disregard
that evidence and/or decide the reasonableness of UBS's conduct
based on the jury's own knowledge as well. The trial court's ruling
represented a clear error of law impacting not only on the legal
standard against which UBS's conduct was measured, but on the
plaintiff's burden of proof, the scope and qualification of expert
opinion testimony, and the application of the standard of care by
way of instruction to the jury (cf. Roberts v. Sisters of St.
Francis Health Services, Inc., 198 Ill. App. 3d 891, 903 (1990)).
In sum, the entire trial was affected by this error. Fairness
mandates that the cause be reversed and remanded for retrial.

II
Survival Act Claim
With the exception of UBS's claim that plaintiff's Survival
Act claim was time-barred, the remaining issues relate to
evidentiary matters, failure to prove proximate cause, and
irrelevancy of certain expert opinion testimony, which may not
arise upon retrial. In order, however, to resolve claims of error
which may reoccur on retrial (Sparling v. Peabody Coal Co., , 500 (1974)), we address whether UBS was entitled to
judgment based on the time-barring of the Survival Act claim.
The record reveals the following. Dr. Mario Oliveros, the
Advincula family physician, testified that he had advised plaintiff
sometime during the period of April 29, 1987, through May 16, 1987,
that he suspected the deceased had contracted AIDS. Plaintiff
testified that, on May 27, 1987, she was first informed the
deceased had contracted AIDS. It is undisputed that the deceased
himself was informed of that fact several days later. Plaintiff, as
the administrator of the deceased's estate, filed the Survival Act
claim on May 26, 1989, less than two years after the deceased had
learned of his injury. See Ill. Rev. Stat. 1983, ch. 110, par. 13--
202.
Following trial, the jury returned a verdict in plaintiff's
favor and awarded damages of $1.5 million for the deceased's pain
and suffering. UBS motioned for judgment notwithstanding the
verdict, which the trial court subsequently denied.
On appeal, UBS contends that plaintiff's survival claim was
time-barred by the two-year statute of limitations applicable to
personal injury actions. Ill. Rev. Stat. 1983, ch. 110, par. 13--
202. UBS asserts that the discovery rule should not be applied here
to salvage plaintiff's claim because its purposes are not served.
UBS additionally asserts that the plaintiff brought the claim more
than two years after she had reason to know the deceased had AIDS.
Relying on Janetis v. Christensen, 200 Ill. App. 3d 581 (1990),
plaintiff responds that the statute of limitations period in a
Survival Act claim is triggered on the date that the decedent
discovers the injury. We agree.
The Survival Act does not create a statutory cause of action.
It merely allows a representative of the decedent to maintain those
statutory or common law actions which had already accrued to the
decedent before he died. Wyness v. Armstrong World Industries,
Inc., , 410-11 (1989); National Bank v. Norfolk &
Western Ry. Co., (1978). As such, a Survival Act
claim is a derivative action based on injury to the decedent, but
brought by the representative of a deceased's estate in that
capacity. Hence, for purposes of triggering the statutory
limitations period, it is the date the deceased learns of his
injury which is controlling. See Janetis, 200 Ill. App. 3d 581; see
also Nolan v. Johns-Manville Asbestos, (1981)
(discussing deceased's knowledge of injury as triggering
limitations period in cause that became survival claim during
appeal).
UBS attempts to distinguish Janetis by arguing that the
procedural posture there necessitated no consideration of the
effect of the plaintiff's knowledge. UBS's argument implies that,
but for the fact that the plaintiff's amended complaint related
back to the deceased's previously filed personal injury suit, a
plaintiff representative's knowledge of injury might be considered
controlling. We are not convinced.
Regardless of whether the deceased had brought a preceding
personal injury action, to which a resulting Survival Act claim
relates back, a survival claim remains a derivative action advanced
by a nominal plaintiff in a representative rather than a personal
capacity. The actual plaintiff in such derivative action is the
deceased, and it is that person's knowledge of injury which
triggers the limitations period. The statement in Janetis that the
discovery of injury by the decedent triggers the limitations period
in a Survival Act claim is simply not a rule confined to the
procedural facts of that case.
In this case, the deceased learned several days after May 27,
1987, that he had previously contracted AIDS. The plaintiff
representative filed the Survival Act claim less than two years
later, fully within the statute of limitations period. We disagree
with UBS that the purposes served by application of the discovery
rule are not advanced here. See Rozny v. Marnul, , 70
(1969). While the discovery rule does not apply to every case, the
passage of time in this case did little, if anything, to increase
any problems of proof. Thus, any problems of proof do not compare
to the hardship to the deceased, who did not know of his right to
sue. Cf. Nolan, .
We therefore find that plaintiff's Survival Act claim was not
barred by the two-year statute of limitations and hold that UBS
would not be entitled to judgment on this issue.

CONCLUSION
We hold that section 3 of the Blood Shield Act requires that
the allegedly negligent conduct of UBS be measured against the
standard of care applied to professional conduct. The trial court
erred as a matter of law in allowing judgment of UBS's conduct
against a reasonable blood bank standard of care. We therefore
reverse the judgments of the appellate and trial courts and remand
this cause to the trial court for retrial.

Appellate court reversed;
circuit court reversed;
cause remanded.

JUSTICE NICKELS, specially concurring:
I agree that compliance with professional rules or industry
standards is evidence of the standard of care, but not conclusive
of it. I further agree that plaintiff's survival action is timely
because it was brought within two years of the decedent's discovery
that the injury was wrongfully caused. However, I disagree with the
majority's analysis and conclusion concerning the standard of care
articulated in the Blood and Organ Transaction Liability Act (the
Act) (Ill. Rev. Stat. 1983, ch. 111«, par. 5101 et seq.).
Therefore, I cannot join in the opinion of the majority.
Section 3 of the Act, entitled "Imposition of Liability,"
provides:
"Every person, firm or corporation involved in the
rendition of any of the services described in Section 2
warrants to the person, firm or corporation receiving the
service and to the ultimate recipient that he has
exercised due care and followed professional standards of
care in providing the service according to the current
state of the medical arts ***." (Emphasis added.) Ill.
Rev. Stat. 1983, ch. 111«, par. 5103.
After a labored exercise in etymology, the majority concludes that
the Act requires a blood bank's conduct be measured against a
professional standard of care. Faced with the statutory language
imposing a due care standard, the majority adroitly reasons that "a
blood bank's conduct is to be measured against `professional
standards of care' while the bank is bound to exercise care which
is due." (Emphasis in original.) Slip op. at 18. Quite simply, this
strained interpretation is supported neither by traditional common
law principles nor by the language contained in the Act.
The majority's reading of the Act squeezes all potential
liability into a cause of action based on the negligent rendition
of medical services by a physician. However, the Act plainly
applies to "every person, firm or corporation" involved in blood
banking activities. The Act therefore imposes a warranty not only
on blood bank physicians, but also on the corporation itself and
every other employee. As the corporation itself and many of its
employees are not physicians, their conduct may not be judged by a
professional standard of care.
The Act by its terms imposes two warranties on those involved
in providing blood banking services. First, the Act imposes a
warranty of "due care." Second, the Act imposes a warranty that
"professional standards of care" were followed in the rendition of
the blood banking services. I submit that the reason that the Act
imposes these two warranties is to simply require "due care" by
those who are not physicians and a "professional standard of care"
by those who are physicians. For example, if plaintiff's theory is
that the manager of the firm or corporation engaged in blood
banking activities hired unqualified personnel or inadequately
trains or supervises them, there is no medical judgment involved
and the due care standard articulated in the Act logically applies.
Similarly, if a plaintiff's theory is that an employee not under
the control of a physician improperly stores, labels, or transports
the blood products, the due care standard articulated in the Act
also logically applies because liability is not premised on a
theory of medical malpractice by a physician. In contrast, if a
plaintiff's theory is that the physician in charge of the technical
and scientific operation of the blood bank made a negligent medical
decision, then the professional standard of care applies. Of
course, a blood bank may then be held liable on theory of vicarious
liability for the negligent acts of its employees.
Such an interpretation is consistent with traditional common
law principles applicable to physicians and hospitals. At common
law, a hospital may be held liable for the failure to exercise due
care. In such cases liability is not predicated on medical
judgments, but on the hospital's failure to exercise due care in
the selection of staff (Dayan v. Wood River Township Hospital, 18
Ill. App. 2d 263, 268 (1958); Northern Trust Co. v. Louis A. Weiss
Memorial Hospital, 143 Ill. App. 3d 479, 486 (1986)); or failure to
exercise due care in the administration of its rules and
regulations (Johnson v. St. Bernard Hospital, 79 Ill. App. 3d 709,
718 (1979)); or failure to exercise due care in its managerial
responsibilities to review and supervise treatment (Darling v.
Charleston Community Memorial Hospital, (1965)). In
contrast, a physician's conduct is judged based on a professional
standard of care. Purtill v. Hess, , 241-42 (1986).
The Act is consistent with these common law principles in
articulating both a professional standard of care and an ordinary
due care standard.
The majority justifies its rejection of these common law
principles because of the need to protect medical judgments. Slip
op. at 23. However, the protection of these medical judgments is
clearly accomplished by imposing a professional standard of care in
those cases where plaintiff's theory involves professional
negligence by a physician. However, I can discern no reason why a
business person who runs a blood bank should be judged by a
professional standard of care in a case involving negligent
supervision or administration of blood banking services.
Furthermore, where an employee of the blood bank mistakenly labels
or stores blood, what medical judgments are sought to be protected?
As these defendants are not physicians, there is no reason to apply
a professional standard of care to their actions.
The majority also claims that "the term `due care' cannot be
construed to indicate a reasonableness standard of care without
creating surplusage within section 3." Slip op. at 18. The majority
reasons that "[i]f the legislature intended that merely a
reasonableness standard of care apply, there was no need to include
the term `followed professional standards of care.' " Slip op. at
18. However, it is the majority's selective reading of the statute
that creates surplusage. If the legislature had intended that only
a professional standard of care apply, then it need not mention due
care at all. A far more reasonable reading of the statute is that
it imposes two warranties, a professional standard of care for
liability based on a physician's conduct and a due care standard
for those who are not physicians.
The majority reasons that the legislature must have intended
to change the common law because the legislature did not merely end
the application of principles of strict products liability to blood
in section 2, but went on to impose a particular form of statutory
liability in section 3. According to the majority, if the purpose
of the Act was to end application of strict liability while leaving
traditional negligence principles intact, then "there was no need
for the legislature to go beyond section 2 in crafting a specific
statutory liability for blood service providers; existing common
law negligence standards of care would have sufficed." Slip op. at
14.
The majority fails to recognize that section 3 changed the
common law in two important ways. First, unlike an action for
products liability where privity is not required, common law
actions for medical malpractice generally require a physician-
patient relationship in order to impose liability. Kirk v. Michael
Reese Hospital & Medical Center, , 531 (1987) ("a
plaintiff cannot maintain a medical malpractice action absent a
direct physician-patient relationship between the doctor and
plaintiff or a special relationship"). Thus, one purpose of the
express warranty contained in section 3 was to prevent any argument
that a blood bank physician had no professional duty to an ultimate
recipient of blood products.
The second reason for the inclusion of section 3 is that the
existing common law standard of care for physicians was changed by
the inclusion of the language "in providing service according to
the current state of the medical arts." This language is an
explicit rejection of the common law "locality rule" that
traditionally governs the standard of care for physicians in
medical malpractice actions. The locality rule "requires a
physician to possess and to apply that degree of knowledge, skill,
and care which a reasonably well-qualified physician in the same or
similar community would bring to a similar case under similar
circumstances." (Emphasis added.) Purtill, 111 Ill. 2d at 242. In
recognition of the national scope of blood banking and the need for
the utmost care to insure the safety of the blood supply, the Act
rejects the locality rule and instead requires a blood bank
physician to practice in accordance with the state of the art. For
this reason, an expert testifying to the professional standard of
care for a physician involved in blood banking must have knowledge
of the state of the art, not merely what is the standard for the
geographic area in which the defendant physician practices.
Although I disagree with the majority's analysis and
conclusion concerning the standard of care articulated in the Act,
I agree with the judgment. The trial court instructed the jury that
the defendant blood bank had a duty to use "due care" and further
defined "due care" as that degree of care "that would be used by
reasonably careful blood banks under circumstances similar to those
shown by the evidence." Cf. Illinois Pattern Jury Instructions,
Civil, No. 105.03.01 (3d ed. 1990). Such an instruction is
appropriate where plaintiff's theory is based on a defendant blood
bank's institutional negligence. However, the jury was further
instructed that in making this determination it could consider "the
knowledge and methods available at and prior to February 1984 to
educate and screen donors and test blood" and "the practices and
procedures of the blood banking industry for screening donors and
testing blood." The appropriate manner of screening of donors and
testing blood is a medical decision made by the physician who is
the medical director of a blood bank. See 210 ILCS 25/2--125, 7--
108(a) (West 1994). Thus, the trial court was in error in applying
an ordinary due care standard to a theory of professional
negligence. Furthermore, appropriate expert testimony was required
in order to inform the jury concerning the current state of the
medical art of blood banking at the time in question in order to
establish the standard of care. For these reasons, I concur in the
judgment only.

JUSTICE MILLER, dissenting:
I do not agree with the majority's interpretation of the
statute, or with its determination that the plaintiff is entitled
to another trial. In my view, the evidence in this case compels the
conclusion that the defendant complied with the applicable standard
of care. For these reasons, I respectfully dissent.
Section 3 of the Blood and Organ Transaction Liability Act
provides:
"Every person, firm or corporation involved in the
rendition of [blood] services *** warrants to the person,
firm or corporation receiving the service and to the
ultimate recipient that he has exercised due care and
followed professional standards of care in providing the
service according to the current state of the medical
arts ***." 745 ILCS 40/3 (West 1994).
The Act was passed in response to this court's decision in
Cunningham v. MacNeal Memorial Hospital, (1970),
which had held that whole blood is a product for purposes of strict
liability. Section 2 of the Act states that the furnishing of blood
for transfusions is a service rather than a sale. Section 3 of the
Act, quoted above, provides the applicable standard of care that
blood banks must meet in rendering this service. Clearly, the aim
of the legislature was to impose a professional standard of care in
these circumstances, and I would interpret the provision to
effectuate that intent. The purpose of the Act would be defeated if
something other than professional standards were to govern, and I
agree with the defendant that no liability can exist under the Act
if professional standards are complied with.
The majority opinion fails to reconcile the statutory language
and in the end adopts an interpretation that is internally
inconsistent. Along the way, the majority engages in what can only
be characterized as a lengthy, confusing, and unnecessary analysis
of common law negligence. At one point, the majority declares that
the common law "is not contravened by construing section 3 to
require application of a professional standard of care to blood
banks" (slip op. at 25), as if common law requirements were
relevant to this inquiry. The statute, however, was expressly
designed to alter the law in this area by providing a statutory
definition of a blood bank's duties; after all, the statute was
originally written to overrule the holding in Cunningham that blood
is a product for purposes of strict tort liability. The legislature
certainly contravened that common law development.
The majority's eventual resolution of the case is unclear,
given the conflicting statements in the opinion regarding the
meaning of the statutory language. Despite a lengthy discussion
that seems to suggest that a blood bank's conduct will be measured
solely against a professional standard of care, the court concludes
that "Section 3 simply does not indicate, nor does Illinois common
law agree, that conforming to professional standards of care in all
instances equates with due care" (slip op. at 30), leaving open the
possibility that a lay standard might govern.
I believe that the statute plainly requires the use of a
professional standard of care. Applying a vague, undefined "due
care" standard, not anchored to professional practices, leaves a
defendant subject to potentially conflicting requirements, as this
case demonstrates. Here, the jury was permitted to assess the
defendant's conduct against not only the prevailing practices of
blood banks in February 1994, when the blood at issue here was
donated, but also against a lay standard of what blood banks, in
hindsight, could have been doing to halt the spread of AIDS.
This attempt to combine professional and lay standards is
ultimately unworkable. Asking the jury to consider both
professional and lay standards means that compliance with lay
standards might be necessary even if the defendant's conduct, as
measured against professional standards, is not wanting. Here, the
defendant presented evidence that professional standards did not
call for surrogate testing in February 1984; the plaintiff's
witnesses, however, believed that surrogate testing should have
been used. If professional and lay standards impose inconsistent
requirements, then a provider of services under the Act might be
liable under one standard or another, no matter what it does, in
plain contravention of the purpose of the statute.
As a final matter, I do not believe that invocation of a lay
standard of care is justified in this case on the grounds,
expressed in the majority opinion, that the standards of an entire
profession might lag behind developments in society at large.
Leaving aside for the moment the question whether use of a
nonprofessional standard, even for that corrective purpose, is
consistent with the terms of the Act, I find no evidence here that
the practices of the blood banking profession were outmoded in
February 1984. Of course, the statutory requirement that a provider
of services under the Act exercise due care and follow professional
standards of care "according to the current state of the medical
arts" is broad enough to ensure that those who engage in the blood
banking profession will not lag behind the medical arts.
The legislature intended for a professional standard of care
to apply in this area. I would therefore interpret the language at
issue here to mean that a blood bank must exercise a degree of care
that is consistent with prevailing professional standards. Thus, a
blood bank's conduct will be measured against professional
standards only, rather than the mixture of professional and lay
standards proposed by the plaintiff and the courts below, and
seemingly allowed by the majority opinion.
Under the record in this case, it seems clear that the
defendant is entitled to summary judgment. The evidence indicates
that the defendant was in compliance with all professional
standards at the time relevant here. Although the plaintiff
presented testimony suggesting that the defendant should have used
surrogate testing, or other means, to screen its blood donations,
virtually no blood bank in the nation was using those procedures at
that time. Given this evidence, I would reverse the judgment
entered in favor of the plaintiff and remand the action so that
judgment may be entered in favor of the defendant.

JUSTICE HARRISON, also dissenting:
Finding ambiguity where none exists, the majority engages in
an exhaustive discussion that is as unnecessary as it its
confusing. Section 3 of the Blood and Organ Transaction Liability
Act (Ill. Rev. Stat. 1983, ch. 111«, par. 5103) requires blood
banks to "exercise[ ] due care and follow[ ] professional standards
of care." There is no reason to believe that this language means
anything other than what it plainly says. Under the statute,
compliance with professional standards of care is not sufficient.
One must also exercise due care. The law could not be more
straightforward.
Although the majority initially appears to reject this
interpretation, it ultimately concedes that due care and compliance
with professional standards are both required by the statute. The
majority correctly notes that conformance with professional
standards of care is indicative but not conclusive of due care.
Slip op. at 29. Even if professional standards have been met, a
blood bank may still be liable if the standards themselves are
deficient. That is precisely what the appellate court here held
(274 Ill. App. 3d at 581-83), and it was the basis for the
instructions given to the jury by the circuit court.
Why the majority nevertheless decides to reverse the lower
courts' judgments I cannot understand. The majority is obviously
concerned that in applying the due care prong of the standard,
juries should not judge blood banks according to some generalized
lay standard of due care. As the appellate court pointed out,
however, the trial court here avoided that error when it
specifically instructed the jury that UBS was required to act in
accordance with how a reasonably prudent blood bank would have
conducted itself. 274 Ill. App. 3d at 583-84. Thus, contrary to
what the majority states, the jury was never told it was free to
disregard the expert testimony "and/or decide the reasonableness of
UBS's conduct based on the jury's own knowledge as well." Slip op.
at 30.
Formulating jury instructions for this case posed some obvious
challenges. The criticism has been made that the appellate court's
instructions made compliance with professional standards
subordinate to the obligation to exercise due care, but if
compliance with professional standards is merely indicative and not
conclusive of due care, as the majority holds (slip op. at 29), I
fail to see how else the instructions could have been drafted. The
criteria for assessing jury instructions on review is simply
whether, considered as a whole, they were clear enough that they
did not mislead the jury and they fairly and accurately stated the
applicable law. See Dabros v. Wang, 243 Ill. App. 3d 259, 267
(1993). The instructions here satisfied these criteria. I would
therefore affirm.

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