A Fairfax woman who suffered permanent nerve damage while donating blood to the American National Red Cross has been awarded $800,000 by a federal jury in Alexandria.

The plaintiff's case was significantly bolstered by the blood-drawing technician's history of violating Red Cross procedures and injuring other donors, said Bernard J. DiMuro of Alexandria, who represented the plaintiff with Michael E. Barnsback.

The case also was assisted by well-documented investigation of the Red Cross by the U.S. Food and drug Administration and the U.S. Department of Health and Human Services, which led to consent decrees and plans to correct dangerous blood-drawing practices.

The case, Fairshter v. American National Red Cross, was tried in federal court in Alexandria. U.S. District Judge Gerald Bruce Lee presided. A Verdict & Settlement report appears on page 16.

Attorney for DOJ

On Aug. 10, 2000, the plaintiff, a lawyer who works for the U.S. Justice Department's Disability Rights Section, went to a bloodmobile donor center set up in Annandale by the Red cross blood Services for the Greater Chesapeake and Potomac region, part of the American National Red Cross.

According to Lee's order that outlined stipulated facts, the donation began normally. After several minutes, however, the plaintiff noticed that her arm and fingers were bright blue, because the blood pressure cuff was too tight. The blood flow had stopped, and the blood in the tube had formed large clots.

The plaintiff called for help, and the technician and a supervisor came to help her. The technician wiggled the needle -- in and out, and side to side -- to try to resume the blood flow. The movement caused pain to the plaintiff, and violated Red Cross standards.

While the plaintiff was still connected, the technician also used a stripping device to force the clots from the tubing -- also a violation. Red Cross standards state that a donation should end if clots form.

Eventually, the blood started flowing again, but the donation took much longer than normal Red Cross standards.

According to evidence presented at trial, the plaintiff later developed Reflex Sympathetic Dystrophy (RSD), which causes constant severe pain, numbness and tingling in her left hand and forearm. The syndrome has no cure, according to experts for the plaintiff and defense.

The plaintiff can achieve only temporary pain relief through injections of a painkiller into her spinal cord, and by using lidocane patches.

The disorder has left her unable to effectively use her left hand, according to evidence.

Violations

In looking into the technician's work history, the plaintiff's team found numerous violations of Red Cross procedures. She had been hired about three months before the plaintiff's attempted donation.

When hired, she told the Red Cross she had voluntarily resigned from her previous job. The employment check reported, however, that she was fired for not following company policies and was not eligible for rehire. The Red Cross hired her nonetheless.

On July 12, 2000, the technician began performing phlebotomies, and immediately received disciplinary notices for violating procedures. Six weeks before the plaintiff's donation, the technician had been put on notice that she would be fired if she was cited again.

Five days before the plaintiff's donation, a complaint was registered against the technician that she had caused a grapefruite-sized bruise to a donor. The Red Cross, however, did not follow its own procedures and notify the technician's supervisor of that complaint.

The Red Cross admitted the technician was negligent. But "they tried to deflect their responsibility for her injuries by having their experts indicate that the timing of Ms. Fairshter's injuries and her blood draw were merely 'coincidental' and a result of ulnar nerve entrapment," according to DiMuro and Barnsback's written account.

DiMuro said the Red Cross' expert was successfully countered by establishing he had diagnosed RSD in another blood donor with much less severe symptoms, who is now suing the Red Cross in West Virginia.

The plaintiff ran into another hurdle with another medical expert. early in the case, the plaintiff had paid an expert $800 to review the file. Later, that same expert showed up as a witness for the Red Cross. Lee disqualified him and expressed astonishment that the doctor had no conflicts check, DiMuro said.

The plaintiff initially asked $600,000 in damages, and dropped to $500,000. The defense never budged from a $15,000 offer, based on an adjustor's analysis that it was a nuisance case.

One of the plaintiff's hurdles was to convince the eight-person jury that the injury was a result not just of an isolated incident, but of an endemic failure in the Red Cross' quality control system.

By introducing the federal inspection records and reports dating back to 1993, and the corrective-action plans the Red Cross had agreed to, the plaintiff was able to show the Red Cross was well aware of its problems and still not following through with policies.

An HHS report issued in April of this year stated that inspections had turned up "a 'culture to hide problems' and,..'a pervasive attitude that the staff can clean problems up so they can never be found.'"

That evidence no doubt had an effect on the jury, the majority of whom indicated to Lee during voir dire that they were blood donors and they believe there are too many frivolous suits filed, DiMuro said.