But what if a trade association sets a standard that is too low, the lower standard is followed by a member of the field, and a consumer claims to be hurt as a result? Does the trade association's decision to undertake the task of setting standards that affect consumers impose a duty of care to those consumers without more, or is duty a question that must be analyzed on a case-by-case basis? Alternatively, should a trade association even be subject to suit for negligence at all when its members elect, without compulsion, to adopt the later-questioned standard? Some of these questions recently were addressed in N.N.V. v. American Association of Blood Banks, 75 Cal. App. 4th 1358 (1999), but at least one significant question remains.
The defendant in N.N.V. was the American Association of Blood Banks, a nonprofit scientific and administrative association for individuals and institutions engaged in blood banking and transfusion medicine.
Like many trade associations, the AABB's purpose is benevolent. Its mission statement declares that it is to establish and promote the "highest standards of care" for patients and blood donors and improve quality-management programs and transfusion packages. To accomplish these goals, it promulgates voluntary standards for blood banks and transfusion centers.
The influence of these standards is substantial California has adopted the AABB's standards as its minimum standards for blood banks and blood-transfusion services. See Health & Safety Code § 1602.5(a)(1); 17 C.C.R. § 1002(d). And, together with the American Red Cross and Council of Community Blood Centers, the AABB represents over 98 percent of the entities that collect the nation's voluntary blood supply.
But implementing a lofty mission statement like setting the "highest standards of care" is not always easy in practice. When science has yet to provide a clear answer to a difficult question, the appropriate standard of care may be hard to determine or the subject of serious debate. The process of evaluating different data, opinions and interests to determine the position a trade association will take can be difficult, but the N.N.V. court noted that this is the benefit that trade associations like the AABB provide.
Such associations not only provide a forum for debate of cutting-edge developments, they can impose discipline and coordination on what otherwise would be independent and unconnected research projects and they can do so more quickly than cumbersome governmental agencies or scholarly publications.
The AIDS crisis in the early 1980s was one of those times when science could not provide clear answers. The AABB was at the center of the debate of what to do about the theory that the AIDS virus could be transmitted through blood transfusions. Less than one month after the Centers for Disease Control reported a case of probable AIDS transmission through a blood transfusion, the AABB convened a conference to address the issue. Despite the speed at which the meeting was convened, no obvious recommendation to the blood-banking industry emerged.
Scientific opinions even varied at the time about whether the AIDS virus could be transmitted through blood transfusions. The AABB nevertheless assumed that a risk of transmission existed and debated three proposals to prevent contamination of the voluntarily donated blood supply. The first was direct questioning, whereby potential blood donors would be questioned about whether they fell into a group at a "high risk" for AIDS; the second was surrogate disease testing, in which potential donors would be tested for hepatitis B using a newly developed test of limited availability; and the third was directed donation, in which a limited circle of family and friends would donate blood for a specific patient.
All of the proposals were deemed inadequate under the science available. None guaranteed that carriers of the AIDS virus would be screened out and the surrogate disease testing arguably might have encouraged more persons with the AIDS virus to attempt donations to obtain a diagnosis. Each also carried the risk that persons free of the AIDS virus would be wrongly labeled as having the disease. Also, curtailing the blood supply would harm surgical patients and accident victims. Not only were none of the proposals adopted, the AABB eventually expressly advised against the use of directed donations and surrogate disease testing.
Not until Dec. 1984 did science begin to provide answers: The virus that caused AIDS was discovered and, by March 1985, a test for it was developed. Unfortunately, the science came too late for the minor plaintiff in N.N.V., who had already received a blood transfusion and eventually was diagnosed as HIV-positive in 1989.
N.N.V. sued the AABB, arguing that it owed him a duty of care because it voluntarily undertook to set standards for the blood-banking industry and because it failed to recommend direct questioning, surrogate disease testing or directed donations as precautions for blood donors.
N.N.V. relied on section 324A of the Restatement (Second) of Torts, under which a defendant is liable for negligence when it undertakes to render services that it should recognize are necessary for the protection of a third person and negligently performs the services, resulting in harm. Had section 324A controlled, there is little question that the AABB would have owed a duty of care to the plaintiff, since it unquestionably undertook to set blood-bank safety standards that were necessary for the protection of patients. (Although the N.N.V. court eventually concluded that even if the AABB had owed a duty of care, it was not breached.)
The N.N.V. court, however, side-stepped the voluntary-undertaking analysis suggested by section 324A and instead utilized California's traditional duty analysis to determine whether the AABB owed a duty of care to N.N.V. This analysis involves a weighing of several factors, including the foreseeability of harm to the plaintiff, the closeness between the defendant's conduct and the injury, the policy of preventing future harm and the consequences to the community.
According to the court, foreseeability was plaintiff's most significant hurdle. In Snyder v. American Association of Blood Banks, 676 A.2d 1036 (N.J. 1995), the New Jersey Supreme Court had evaluated the AABB's activities during the very same time period as was in issue in N.N.V. and found the risk of harm very foreseeable. Although the Snyder decision was followed by courts in New York and Louisiana, the N.N.V. court found its foreseeability analysis lacking.
Though the issue in Snyder was very specific whether it was foreseeable that the plaintiff was harmed due to AABB's failure to recommend surrogate disease testing the Snyder opinion, according to the N.N.V. court, incorrectly asked instead whether it was foreseeable that a plaintiff would be harmed by the AABB's failure to recognize that HIV could be passed in blood transfusions.
Moreover, the N.N.V. court held that the AABB had made its decisions assuming that the risk of transmission existed and that the Snyder decision improperly viewed the question of foreseeability in hindsight it spoke only of the devastating consequences of transmission and not the efficacy of surrogate disease testing or the state of knowledge and care at the relevant time.
After properly framing the foreseeability issue, the N.N.V. court concluded that it just was not foreseeable that the plaintiff would be harmed absent the debated precautions because the science before Dec. 1983 did not show that they were effective or reliable, and each had significant disadvantages. In fact, because of the lack of efficacy of each of the proposed precautions, N.N.V. could not even demonstrate that the transmission would have been averted had the AABB adopted any or all of them.
When the N.N.V. court evaluated the next factor relevant to the duty analysis, it concluded that no moral blame attached to the AABB's behavior during the requisite time. Though the plaintiff criticized the AABB for taking costs into consideration when it evaluated the three proposed precautions, the court concluded that this was appropriate. Although the discussion might appear cold-hearted in view of the plaintiff's tragic circumstances, the court recognized that resources are not unlimited and must be allocated. Thus, it was appropriate to make recommendations after evaluating costs of proposed precautions and the number of lives jeopardized by a reduction in the blood supply against the number of lives jeopardized by transmission of AIDS.
The fact that plaintiff's proposal would have held the AABB to an unobtainable standard of care also militated against the imposition of a legal duty. The court believed that the most that could be said about the AABB's conduct was that, arguably and with hindsight, it chose the "wrong" side of a scientific debate about which there was no consensus before Dec. 1984. Since the very nature of scientific debate is that no "right" answer has emerged, imposing liability on an entity just for choosing the wrong side does nothing to ensure that the "right" position will be chosen in the next scientific debate. In fact, imposing liability might encourage rash, premature action before all data is in.
Finally, if the AABB were held to owe a duty of care under the circumstances of the N.N.V. case, it would be held to a significantly more onerous standard than is otherwise imposed on medical professionals. As the court noted, medical professionals are not liable for choosing among different methods accepted by the profession, even if the selected procedure or treatment turns out to have been the "wrong" one. If the AABB owed a duty, it would be required to choose the approach that, with hindsight, turned out to be the correct one.
Since legal duty is, after all, "simply a shorthand expression for the sum total of policy considerations favoring a conclusion that the plaintiff is entitled to legal protection," under the circumstances of the case and the policy considerations that applied as a result, the court held that the AABB owed no duty of care to the plaintiff for its blood-bank precaution recommendations before Dec. 1984.
But the N.N.V. approach to legal duty is very fact-specific. In another case involving different possible blood-bank precautions at a different point in time, the AABB might well be held to have owed a duty of care to another plaintiff depending on the specific foreseeability of harm presented. As a result, the N.N.V. court has adopted a standard that requires each trial court faced with a trade-association negligence case to undertake its own specific inquiry, and future plaintiffs are not inhibited from attempting to establish a trade-association duty of care in other circumstances.
Even more significant, however, is the fact that after the N.N.V. case, the AABB and other trade associations will never know at the time they make a decision whether a court will later conclude that they owed a duty of care to third parties in making that decision. As a result, trade associations will have to formulate their standards and promulgate their recommendations as if they owe a legal duty to third parties or take their chances later in court if a lawsuit is filed.