Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SATURDAY, June 25, 1994 TAG: 9406280096
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: By LAURA WILLIAMSON STAFF WRITER NOTE: above
DATELINE: LENGTH: Medium
So they offered to donate their own.
Don't worry, a surgeon at a Charleston, W.Va., hospital told them. He probably won't need any, and, if he does, we can use his.
But Anthony Mazzella Kirby did need a unit of blood. Doctors couldn't recycle the boy's own blood because they failed to save it during the operation. Instead, they gave him some that had been donated through the American Red Cross.
It was seven years before the Kirbys discovered that the blood came from a homosexual man who had failed to tell the Red Cross about his high-risk lifestyle. The man later died from AIDS.
On Wednesday, so did Anthony.
The 11-year-old boy from Blue Ridge has been at the center of a lawsuit filed by his parents against the Red Cross. The lawsuit was filed under the names Mary and John Doe, on behalf of their son, Jason Doe. Lawyers for both sides have refused to identify the child, but the Roanoke Times & World-News was able to confirm independently that the child was Anthony Kirby.
The Kirbys declined to discuss their son's life and death.
In April, after a 12-day trial and three days of deliberations, a federal jury in Charleston found the Red Cross negligent for failing to properly screen the donor who provided the tainted blood. But, the jurors ruled, that didn't mean the Red Cross caused the boy's death. They found in favor of the defendant and awarded no money to the Kirbys.
Now, the Kirbys are asking for a new trial.
Denver attorney Bruce Jones said he completed a brief last week arguing that the judge erred in some of his rulings on the evidence and that the jury reached an improper finding in light of the evidence that was presented. He's asking for a new trial before the same judge. It could be the end of summer before he finds out if he'll get one.
The Red Cross is fighting that request, said Charleston attorney Steve Farmer, one of two attorneys defending the nonprofit blood bank and relief agency.
"As unfortunate as the facts surrounding the Doe case were, and there's no question that Jason Doe was an innocent victim, the Red Cross didn't do anything wrong," Farmer said.
At the time the blood was donated, Farmer said, little was known about how AIDS was spread. The HIV virus had not been identified and it was not known that the disease was transmitted through blood.
A blood test for HIV was developed in 1985 and, since that time, the Red Cross has been using it, Farmer said.
"The chances of AIDS being spread through transfusions today is very slight," he said.
A recent report in U.S. News & World Report placed the risk of receiving HIV through a blood transfusion between 1 in 11,000 and 1 in 59,000. The magazine also found that between 90 and 460 units of blood infected with the HIV virus make it into the blood supply each year, along with 4,200 units infected with the hepatitis virus.
The risks of infection through blood transfusion were much higher in 1983, the report found. At a time when the American Red Cross was placing the risk for getting AIDS from transfusions at about 1 in a million, it was actually closer to 1 in 660.
Several health care providers also identified in the Kirbys' lawsuit, including the surgeon, have since settled with the family. Jones said the family spent more than $500,000 in medical care for the child, who suffered from a series of illnesses that spanned his short lifetime.
Under West Virginia law, he said, the Kirbys can't sue the Red Cross for a specific amount of money. It will be up to a jury-if they win a second trial-to determine how much they should receive.
Jones, who has represented two other families in similar lawsuits, said he won one case on retrial and lost the other.
Farmer said the Red Cross has been sued several times over tainted blood but has never lost a case.
The Kirbys will bury their son today in Charleston. They are asking that donations be made, in lieu of flowers, to the Bonsack United Methodist Church Handbell Fund or to the Pediatric AIDS Foundation in Santa Monica, Calif.
by CNB