34 F. 3d 231 - Doe v. American National Red Cross Sc

In April, 1984 Doe underwent surgery at the Baptist Medical Center in Columbia, South Carolina. During surgery Doe received transfusions of blood or blood products provided by American National Red Cross (Red Cross). Doe died in December, 1987, and an autopsy revealed that Doe had the AIDS virus. Believing that Doe had received a transfusion of HIV-contaminated blood during surgery in 1984, Mrs. Doe notified the Red Cross in January, 1988 that her husband had developed AIDS and died following a transfusion of blood provided by the Red Cross.

The Red Cross conducted a standard investigation and determined that the blood components of 24 donors were transfused into Doe. From its records the Red Cross determined that 16 of the donors had tested HIV negative when subsequently donating blood to the Red Cross more than six months after the implicated donation. The Red Cross then attempted to contact the remaining eight donors by mail at their last known address. Seven of these donors subsequently reported to the Red Cross and tested negative for HIV. The last donor did not respond to the letter, and further efforts to contact the donor were ineffective. The Red Cross then requested the assistance of the South Carolina Department of Health and Environmental Control (Department of Health), and the Department of Health both located and tested the last and twenty-fourth donor, revealing that the donor was HIV positive. The Department of Health then released this information to the Red Cross based upon its belief that the release was justified under S.C.Code Ann. Sec. 44-29-135(c) and (d).1

In December, 1990 Mrs. Doe filed both a wrongful death action and a survival action, claiming that the Red Cross was negligent in its processing of the blood used for the transfusion. During discovery Mrs. Doe served interrogatories on the Red Cross, requesting, among other things, the "[i]dentity of the blood donor whose blood donation was labeled blood number 36K04689, who is known to have tested positive for HIV." The Red Cross objected to the interrogatories. The Red Cross then moved for a protective order to safeguard the identity of the implicated blood donor.

In ruling upon the motions, the district court addressed whether the Red Cross had a privilege to refrain from disclosing the identity of the donor. Based upon Regulation 61-21(G)(2)(d)2 promulgated by the South Carolina Department of Health, the district court held that the privilege created by Sec. 44-29-135 extended to the Red Cross. Consequently, the district court denied Mrs. Doe's motion to compel discovery and granted the Red Cross's motion for a protective order. The Red Cross then filed a motion for summary judgment. Mrs. Doe, in response to the motion for summary judgment, conceded that without discovery from the implicated donor, she did not have sufficient evidence to proceed with her claims. After reviewing the argument presented by the Red Cross, the district court granted the motion for summary judgment.

Mrs. Doe contends that she has access to the donor under Watson v. Low-country Red Cross, 974 F.2d 482, 488-89 (4th Cir.1992), and that under Doe v. Red Cross Blood Servs., 125 F.R.D. 646, 651 (D.S.C.1989) (unrelated) the privilege created by Sec. 44-29-135 rests only with the Department of Health. As for Regulation 61-21(G)(2)(d), Mrs. Doe contends that the Department of Health exceeded its legislative authority by promulgating the regulation in response to Doe's interpretation of Sec. 44-29-135 and imposing "strict confidentiality" on blood collectors.

The Red Cross contends that Sec. 44-29-135 and Regulation 61-21(G)(2)(d) together establish a privilege that precludes disclosure of the donor information sought by Mrs. Doe. The Red Cross also contends that the Department of Health did not exceed its legislative authority in promulgating Regulation 61-21(G)(2)(d) and that the regulation is consistent with the legislative intent of Sec. 44-29-135.

Since the resolution of these contentions of the parties is a matter of South Carolina law, and it appears to us that there is not controlling precedent on point in the decisions of the Supreme Court or the Court of Appeals of South Carolina, and that the questions of South Carolina law may be determinative, in our opinion it is proper to certify to the Supreme Court of South Carolina for decision the question in this case under S.C.App.Ct.R. 228.

Under South Carolina law, do Sec. 44-29-135 and Regulation 61-21(G)(2)(d) create a discovery or evidentiary privilege in blood collectors to deny access to a donor?3

This certification is made with the concurrences of Judge WILKINSON and Judge HILTON.