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The Judgment of the Kutaisy Court of Appeal issued on November 25, 2008

15.12.2017

The Judgment of the Kutaisy Court of  Appeal issued on November 25, 2008  

Ms. K submitted a civil complain against Kutaisi maternity hospital no.1 (« the hospital »). Following Ms. K, she was received at the hospital on January 2001.

On 10 January, she gave birth to twins. Complications followed the birth and she had to undergo a surgical operation. During her surgery, Ms. K required blood transfusions. She received five transfusions in total. Few months after she left the hospital, she noted that her health deteriorated: she suffered from weakness, dizziness, intestinal disorder, etc. She did not pay attention to these symptoms, as she didn’t have the opportunity to visit a doctor anyway. The abovementioned symptoms appeared from time to time during a few years without her knowing their causes.

In the beginning of October 2005, doctors from Tbilisi examined her and took her blood samples. They informed her that she could be infected with HIV.  

Ms. K states that her nervous system is totally destroyed and she was facing death everyday. She feels morally destroyed. Concerning her personal situation, Ms. K is divorced and has two twin-daughters. She also takes care of her elder father and is the only source of revenue for her three dependents.  Regarding her physical and psychological state, she stopped working, having for consequences the loss of the only revenues of the family. In order to earn money, she was under the necessity to sell her flat and during a few months she has been renting a flat.

She asked the award of 200,000 GEL to improve her health condition, to re-create acceptable life conditions, and to regain access to proper food and recover and rest in order to prolong her life expectancy.

The Court established that Ms. K was under the care and monitoring of a medical unit, with the diagnoses HIV, category B3, constitutional syndrome.

The Court found, that Ms. K was infected by the blood provided by the LLK “Kutaisi regional blood bank”. The Court confirmed that K. has stayed at the maternity hospital from 4 until 28 January 2001 and gave birth to her twins there. She went through surgery because of a uterine hemorrhage which followed the birth and for which she received blood transfusions provided by blood bank.

The allegedly infected blood was donated by Mr. C, a 32-year old male. He has been donating his blood since 1993. His blood was HIV tested at each donation. The results of such tests were always negative, as well as the hepatitis B, C and syphilis tests. On 27 April 2001 he was recognized as unequal because of hepatitis C. At the time of the Court’s hearing he couldn’t be tested as he was residing in Russia.

Taking into account that in total, five patients infected were identified in Kutaisi, including Ms. K., that were transfused blood of C., the Court came to conclusion that Ms. K. could be infected by the abovementioned donor’s blood.

The Court has found, that even if the donor Mr. C. was at the cause of Ms. K’s HIV infection, it wasn’t revealed due to following reasons:

Mr. C. blood testing and blood transfusion could be doing in eclipse phrase when quantity of HIV antibodies to show them simple and quick enzyme multiplied immunoassay method was not sufficient to indicate them. Length of such eclipse phrase is usually 2-3 months after infection and in rare cases – till 6 months and more than this.

HIV-infection cannot be revealed in a hundred percent of cases because of law sensitivity of test-systems that are used in donor’s blood testing for HIV.

Kutaisi district prosecutor’s office initiated a criminal investigation concerning the cases of HIV infection.

In accordance with the Article 14 of the Law of Georgia on the donation of blood and its components, staff and officials of public health organisation are responsible for the storage of the blood and for ensuring the “sanitary” rules, breaching of production.

In accordance with the Article 1009, par.1 of the Civil Code of Georgia the defective product manufacturer is liable for the damage caused by his product.

In accordance with the Article 1010 par.1 of the same Code the product must be considered defective if it fails to guarantee safety to the users. The Court stated that the documents of the case confirm the defendant’s responsibility, as it failed to guarantee the quality of the blood they were using, with the tragic aftermath of the contamination of an incurable disease to the patient. Therefore, she was granted pecuniary and non-pecuniary damages.  

According to the Article 104 of the Civil Code, reimbursement commitment, provided by the Article 1008, extends its definition to damages such as death or injury harming consumer’s health. Article 413, par.2 provides that victims can also seek for non-pecuniary remedy to the damage suffered.

In accordance of the abovementioned articles, the Court also took into account both the claimant’s and the defendant’s economic situation, and the fact that Ms. K. was treated at the state expense and that she has been under permanent medical supervision.

The Court ordered  LLK “Kutaisi regional blood bank” to pay in favour of claiment 22,000.00 GEL

The Court of Appeal changed the judgment in part of payout amount and ordered  to pay in favour of claiment 12,000.00 GEL into account both the claimant’s and the defendant’s economic situation and that claimant's children had not been infected.

 

The text of the judgment in Russian is accessible by the following link http://hiv-legalaid.org/

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Единственный человек, с которым вы должны сравнивать себя, это вы в прошлом. И единственный человек, лучше которого вы должны быть, это тот, кто вы есть сейчас / Зигмунд Фрейд

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