Smith v. Paslode Corp.

7 F.3d 116, 1993 WL 392245
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 7, 1993
DocketNo. 92-3389
StatusPublished
Cited by7 cases

This text of 7 F.3d 116 (Smith v. Paslode Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Paslode Corp., 7 F.3d 116, 1993 WL 392245 (8th Cir. 1993).

Opinion

FAGG, Circuit Judge.

Kevin Luke Smith and Constance Smith appeal from the district court’s order granting the American Red Cross’s motion for summary judgment on the ground that the Smiths’ negligence claims against the Red Cross are time-barred. Smith v. Paslode Corp., 799 F.Supp. 960, 965-68 (E.D.Mo.1992). The Smiths appeal. We affirm in part and reverse in part.

Kevin Smith was injured by a nail gun in November 1983. As a result of the injury, Kevin underwent surgeries in November 1983 and August 1984. During the surgeries, Kevin, who suffers from a mild form of hemophilia, was infused with eryoprecipitate, a blood component that aids clotting, supplied by the Red Cross. Kevin married Constance in March 1987. On August 31, 1987, three years after his last transfusion, Kevin learned he tested positive for the human immunodeficiency virus (HIV), the virus that causes acquired immunodeficiency syndrome (AIDS). Neither Kevin nor Constance knew or suspected Kevin had been infected with HIV before that date.

In August 1989, within two years after Kevin learned he was infected with HIV, but nearly five years after his last transfusion, Kevin and Constance filed this action against the Red Cross raising several negligence claims. The district court concluded the Smiths’ negligence claims are time-barred by the Missouri statute of limitations that generally provides: “All actions against physicians, hospitals, ... and any other entity providing health care services ... for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of [the alleged act of neglect]_” Mo.Stat. Ann. § 516.105 (Vernon Supp.1993).

The Smiths first contend section 516.-105 does not apply because the' Red Cross is not an “entity providing health care services.” We disagree. The Red Cross is an entity, and under Missouri law, the procurement, processing, distribution, or use of whole blood, plasma, blood products, and blood derivatives for transfusion into the human body is a service, Mo.Stat.Ann. § 431.-069 (Vernon 1992). The district court found the undisputed evidence showed the Red Cross uses medical expertise in collecting, processing, and distributing blood. 799 F.Supp. at 966. We agree with the district court that the Red Cross is an entity that provides health care services.

The Smiths urge us to follow the reasoning of Kaiser v. Memorial Blood Ctr., 486 N.W.2d 762 (Minn.1992), in which the Minnesota Supreme Court held the Red Cross is not a “health care professional” subject to [118]*118Minnesota’s medical malpractice statute of limitations. The Minnesota statute, however, contains a narrow statutory definition of health care professionals, which does not include nonnatural persons. Id. at 766. In contrast, the Missouri statute broadly covers any entity providing health care services, with no further applicable definition of the term.

Other Missouri statutes support our view that the Red Cross provides health care services. After the Missouri legislature enacted section 616.105, it enacted statutes that limit noneconomic damages in tort actions for improper health care. Mo.Stat.Ann. §§ 538.-205-.230 (Vernon 1988). For the purpose of chapter 538, “health care services” are defined as including “transfer to a patient of goods or services ... in furtherance of the purposes for which an institutional health care provider is organized.” Id. § 538-205(5). “Health care provider” is defined as “any ... entity that provides health care services under the authority of a license or certificate.” Id. § 538.205(4). The Red Cross collects and transfers blood in furtherance of its institutional purpose, and the undisputed evidence shows the Red Cross performs blood banking under a Food and Drug Administration license. Thus, it appears that under chapter 538, the Red Cross would be a health care provider' that provides health care services.

The Smiths also assert that because blood banks lack a patient-provider relationship like physicians, hospitals, and the other health care providers specifically named in section 516.105, we should construe the statute’s later general terms, “any other entity providing health care services,” as not applying to blood banks. This rule of statutory construction, known as ejusdem generis, does not apply in this case because the general terms of section 516.105 are clear. United States v. Clark, 646 F.2d 1259, 1265 n. 12 (8th Cir.1981); Mashak v. Poelker, 367 S.W.2d 625, 630 (Mo.1963) (en banc).

The Smiths next argue section 516.105 does not apply because their action is not “for damages for ... negligence ... related to health care.” Section 516.105 confines application of the two-year limitations period to only the specified class of lawsuits brought against health care providers. Rowland v. Skaggs Cos., 666 S.W.2d 770, 772 (Mo.1984) (en banc). In rejecting a claim that the statute applies to actions for contribution, the Missouri Supreme Court stated the statute encompasses actions in which “the consumer of health services seeks damages for injuries resulting from some improper, wrongful or careless acts or omissions on the part of a health care provider in the delivery of health care to the consumer.” Id. at 772-73.

Kevin alleged the Red Cross was negligent in failing to implement a surrogate test to screen high risk blood and in failing to use a more aggressive, confrontational interview to screen high risk donors. Kevin asserts these claims are for negligence in performing ministerial and administrative functions rather than for negligence related to his health care. The Red Cross’s decisions not to use a surrogate test to screen blood and not to screen donors more aggressively, however, were made and implemented by physicians, nurses, and other health care professionals exercising professional judgments. Further, a physician or someone acting under a physician’s supervision must determine the suitability of a donor on the day the blood is collected. 21 C.F.R. § 640.3(a) (1984). We thus conclude Kevin’s claims that the Red Cross negligently failed to use a surrogate test and to screen the donors more aggressively are related to health care.

The Smiths next contend the two-year statute of limitations in section 516.105 did not begin to run until Kevin discovered he had AIDS in August 1987 because the statute’s discovery rule for foreign objects applies. Section 516.105 provides an exception to the general two-year statute of limitations for “eases in which the act of neglect complained of [is] introducing and negligently permitting any foreign object to remain within the body of a living person.” This exception, however, does not apply when the plaintiff does not allege the defendant negligently allowed a foreign object to remain in the plaintiffs body. See Hershley v. Brown, 655 S.W.2d 671, 675-76 (Mo.Ct.App.1983) (foreign object exception inapplicable to claim of negligent performance of medical [119]

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7 F.3d 116, 1993 WL 392245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-paslode-corp-ca8-1993.