13-22-104. Transplants and transfusions generally - declaration of policy - limit on liability of minors.
Statute text
(1) The availability of scientific knowledge, skills, and materials for the transplantation, injection, transfusion, or transfer of human tissue, organs, blood, or components thereof is important to the health and welfare of the people of this state. Equally important is the duty of those performing such service or providing such materials to exercise due care under the attending circumstances to the end that those receiving health care will benefit and adverse results therefrom will be minimized by the use of available and proven scientific safeguards. The imposition of legal liability without fault upon the persons and organizations engaged in such scientific procedures may inhibit the exercise of sound medical judgment and restrict the availability of important scientific knowledge, skills, and materials. It is, therefore, the public policy of this state to promote the health and welfare of the people by emphasizing the importance of exercising due care, and by limiting the legal liability arising out of such scientific procedures to instances of negligence or willful misconduct.
(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. No physician, surgeon, hospital, blood bank, tissue bank, or other person or entity who donates, obtains, prepares, transplants, injects, transfuses, or otherwise transfers, or who assists or participates in donating, obtaining, preparing, transplanting, injecting, transfusing, or transferring any tissue, organ, blood, or component thereof from one or more human beings, living or dead, to another living human being for the purpose of therapy or transplantation needed by him for his health or welfare shall be liable for any damages of any kind or description directly or indirectly caused by or resulting from any such activity; except that each such person or entity remains liable for his or its own negligence or willful misconduct.
(3) Any provision of the law to the contrary notwithstanding, any minor who has reached the age of eighteen years may give consent to the donation of his or her blood, organs, or tissue and to the penetration of tissue which is necessary to accomplish such donation. Such consent shall not be subject to disaffirmance because of minority. The consent of the parent, parents, or legal guardian of such a minor shall not be necessary in order to authorize such donation of blood, organs, or tissue and penetration of tissue.
(4) Any provision of the law to the contrary notwithstanding, a minor who is at least sixteen years of age but is less than eighteen years of age may give consent to the donation of his or her blood and to the penetration of tissue that is necessary to accomplish the donation, so long as the minor's parent or legal guardian consents to authorize the donation of the minor's blood and the penetration of tissue. A minor's consent shall not be subject to disaffirmance because of minority.
History
Source: L. 71: p. 491, 1. C.R.S. 1963: 41-2-11. L. 2000: (3) amended, p. 730, 7, effective July 1. L. 2009: (4) added, (HB 09-1023), ch. 27, p. 117, 1, effective August 5.
Annotations
Cross references: For additional authority, see the "Uniform Anatomical Gift Act", parts 2 and 3 of article 19 of title 15; for the donation of human tissue, organ, or blood or component thereof under the uniform commercial code, see 4-2-102.
Annotations
ANNOTATION
Annotations
Law reviews. For note, "Medical Products and Services Liability: Public Policy Requires Legislative Innovation and Judicial Restraint", see 53 Den. L. J. 387 (1976). For comment, "Liability Without Fault and the Aids Plague Compel a New Approach to Cases of Transfusion-Transmitted Disease", see 61 U. Colo. L. Rev. 81 (1990).
This section does not have retroactive application. Belle Bonfils Mem. Blood Bank v. Hansen, 665 P.2d 118 (Colo. 1983).
This section affirms that general negligence standards, not product liability standards, shall apply in determining the liability of a blood bank supplying blood tainted with the AIDS virus. Quintana v. United Blood Servs., 811 P.2d 424 (Colo. App. 1991), aff'd, 827 P.2d 509 (Colo. 1992).
This section expresses a twofold purpose. One purpose is to foster the development of medical services and to make those services more available to health care recipients by relieving blood banks from unduly rigid standards of legal liability. The other purpose is to minimize the risk of harm to health care recipients by requiring a blood bank to exercise due care by utilizing "available and proven scientific safeguards" in its operations. United Blood Servs. v. Quintana, 827 P.2d 509 (Colo. 1992).
The implantation of an embryo is not a sale of a good or product; rather it constitutes the provision of a medical service pursuant to this section. Am. Econ. Ins. Co. v. Schoolcraft, 551 F. Supp. 2d 1235 (D. Colo. 2007).
The statutory scheme of this section clearly contemplates that a blood bank's conduct in procuring and processing blood is to be measured by a professional standard of care because subsection (2) expressly categorizes the acquisition, preparation, and transfer of human blood or its components for medical transfusion as the performance of a medical service. United Blood Servs. v. Quintana, 827 P.2d 509 (Colo. 1992).
The trial court erred in excluding expert testimony on the unreasonably deficient character of the blood banking community's screening and testing procedures. The trial court, after correctly ruling that a professional standard of conduct applied, erroneously applied that standard in a manner that effectively precluded the plaintiffs from establishing that the national blood banking community's standard of care was itself unreasonably deficient in not incorporating available safeguards designed to provide substantially more protection against the risk of infecting a transfusion recipient with AIDS. United Blood Servs. v. Quintana, 827 P.2d 509 (Colo. 1992).