Chapter 12 - § 12.3 • THE BLOOD SHIELD STATUTE — MEDICAL TRANSPLANTS AND TRANSFUSIONS

• Jurisdiction: Colorado

§ 12.3 • THE BLOOD SHIELD STATUTE — MEDICAL TRANSPLANTS AND TRANSFUSIONS

Colorado has a statute (sometimes referred to as the Blood Shield Statute)²⁴ that provides protection for people and entities that provide, transplant, inject, or transfuse "any human tissue, organ, blood, or component thereof" for medical services.²⁵ Colorado courts have applied this statute to cases involving blood transfusion and to the implantation of an embryo.²⁶

Claims related to such actions and items involve services, not the sale of goods or products.²⁷ The statute provides that such services do not constitute a sale.²⁸ And the statute provides that the only claims for which a person or entity can be liable related to such services are for "negligence or willful misconduct."²⁹ Thus, claims such as those for strict liability and breach of warranty against those providing such services are not viable.³⁰

With regard to one of the only two permitted claims, negligence, a blood bank is liable "when it fails to make use of, or makes unreasonable use of, available and proven scientific safeguards in the course of acquiring, preparing, or transferring human blood or its components for use in medical treatment."³¹ Such conduct must be judged by a professional standard of care established by expert testimony.³²

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Notes:

^[24] Quintana v. United Blood Servs., a Div. of Blood Sys., Inc., 811 P.2d 424, 428 (Colo. App. 1991), aff'd, 827 P.2d 509 (Colo. 1992).

^[25] C.R.S. § 13-22-104.

^[26] Am. Econ. Ins. Co. v. Schoolcraft, 551 F. Supp. 2d 1235, 1243 (D. Colo. 2007); United Blood Servs., a Div. of Blood Sys., Inc. v. Quintana, 827 P.2d 509, 523 (Colo. 1992).

^[27] C.R.S. § 13-22-104(2) ("The donation, whether for or without valuable consideration, the acquisition, preparation, transplantation, injection, or transfusion of any human tissue, organ, blood, or component thereof for or to a human being is the performance of a medical service and does not, in any way, constitute a sale."); C.R.S. § 4-2-102(1)(b) (Colorado's Uniform Commercial Code's Article 2 provisions do not apply to "[t]he donation, whether for or without valuable consideration, acquisition, preparation, transplantation, injection, or transfusion of any human tissue, organ, or blood or component thereof for or to a human being."); Am. Econ. Ins. Co., 551 F. Supp. 2d at 1243 ("Colorado law specifically mandates that the implantation of an embryo is not a sale of a good or product; rather is [sic] constitutes the provision...