Nature of the Case
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Facts
P, age 16, was diagnosed as having scoliosis and was referred to D, an orthopedic surgeon. D recommended surgery and discussed the subject of blood transfusions, including the use of family-donated blood in the operation. P's mother testified she insisted the operation be performed using only family-donated blood. D informed P and her mother they should contact officials at Children's Hospital, where the operation would be performed, to arrange for family-donated blood. P's mother and father and several other relatives went to Children's Hospital and gave blood before and during the operation. None of this blood was used for P. All of the blood used came from the general supplies on hand at Children's Hospital. It was 1983 and no test was available to determine whether blood was contaminated with HIV. In 1987, the hospital discovered P had been transfused during surgery with blood from an HIV positive donor. P tested positive for HIV. P sued D for medical malpractice on the theories of negligence and battery. P's contention was she had specifically conditioned her consent to surgery on the understanding only family-donated blood would be used in her transfusions but D willfully ignored that condition. The trial court granted D's motion for nonsuit on the battery cause of action. After five days of deliberation, the jury returned a verdict in favor of D by a vote of nine to three on the negligence cause. P appealed.
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