Durban – A 69-year-old Durban man is suing the National Blood Transfusion Service (NBTS) for about R24m after he contracted a debilitating, terminal disease from tainted blood.
The man, whose name is being withheld in the court documents, says he is already wheelchair-bound and has to have round-the-clock care, but his situation will worsen as the HTLV-I (human T-cell leukaemia) ravages his body.
The man received the blood at a Durban hospital in 2011. He was diagnosed in 2013 and last year lodged his claim for damages and future medical and other expenses.
The matter came into the public eye when his lawyers – hired by Section 27 – brought an application seeking to strike out the blood services defence to his plea.
Durban High Court Judge Graham Lopes dismissed the application and now the case will go to trial.
Judge Lopes said, however, that because the case was a public interest matter concerning the provision of service by a state organisation – the only one of its kind which is permitted to render the service – he would leave the issue of costs to be determined by the trial court.
In his pleadings, the man accuses the service of negligence and says it ought to have known that the blood was infected.
He said the virus was “progressive” and attacked the nervous system.
“There is no known cure.”
He said the virus continued to be diagnosed in South Africa and despite many other countries having a lower prevalence of it, “they screen their blood because of the devastating consequences of the virus”.
Seeking court order
Apart from seeking compensation, he is also seeking an order from court that the blood service be legally obliged to conduct routine testing for the virus.
The NBTS, in its plea, says it has not, and still does not test for the virus routinely or at all.
It says it only attacks about 4% of South Africans and has a low prevalence in the donor population.
It has pointed to a warning notice, given to the man and his doctor, which points out which diseases are tested for, as per the regulations published in terms of relevant legislation.
These include syphilis, hepatitis B, antibodies of hepatitis C, HIV, red-cell serology and alloagglutinin titre.
“He and his doctor knew [at the time of accepting the blood] that we did not test for all transfusion transmissible pathogens. They knew there was a risk and accepted that risk.
“While we admit that he was infected from the blood, we deny any wrongdoing or negligence.”
However, the man says the service cannot hide behind the warning notice to avoid liability.
He says it should look at the latest scientific information and expand the list of infectious agents for which mandatory testing is required.
The matter has yet to be set down for trial.