We Must Never Forget Bill Modestino and the 10,000 Hemophiliacs
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In the past week, two men passed away; Doctor Oscar Ratnoff and Jonathan Wadleigh. Their deaths may have gone unnoticed by a large segment of the population. However, they were both men whose lives were marked by their roles in perhaps the most significant pharmaceutical/medical scandal in our countrys history; the death of 10,000 hemophiliacs from HIV infected blood clotting products. Their deaths also reminded me of other individuals that played a significant role in my life anda case I tried in 2001 arising out of this story; Bill Modestino and his parents, Bill and Brenda; Doctor Geni Bennetts; Doctor Don Francis and Doctor Marcus Conant.
Doctor Ratnoff was a physician in Cleveland that took most of his hemophiliac patients off of clotting concentrate in the early 80s when the risk of HIV infection of the factor concentrate became apparent. He was criticized by his colleagues for this action. At the time, factor concentrate was a billion dollar a year business and most of his colleagues continued to prescribe the products, many without ever advising their patients, or the patients parents, of the risk of death. When I interviewed him while researching my case, and asked him how he felt about being told he was wrong, he responded "Well Mr. Bierhans, I wasn't wrong, was I".
Jonathan Wadleigh was a co founder of a group known as the Committee of ten Thousand. As his obituary noted, he was an advocate for those "who faced death through infection by blood products."
Which brings me to Bill Modestino and the other names above. In 2001 I tried a case in Worcester on which I had worked for 5 years. Bill Modestino Jr, was just one hemophiliac that died in his early 30s after waging a courageous fight against AIDS. His parents, Bill and Brenda,were committed to telling the story of their son (and in reality, the entire 10,000), regardless of the outcome. The challenges in even getting the case to trial were many. However, perseverence prevailed and wewent to trial. The story would now be told.
Our theory was a simple one. We argued that in the early 80s, particularly after 1982, there was enough information about the risk of HIV infection available to hemophiliac treaters to warrant that physicians had an obligation to inform their patients of the risk and of alternative treatments. Doctors Francis and Conant (see the fantastic Randy Shilts book "And the Band Played On") agreed to testify in Worcester and help us tell the story. Doctor Bennetts was another hemophiliac treater in California that had taken most of her patients off of clotting concentrate because of the risks. Doctor Bennetts courageously agreed to testify that she believed that she believed that the standard of care had been violated by most of her colleagues when they continued to prescribe the products in the 80s.
After a two week trial in May and June of 2001, the jury returned two verdicts against one physician, finding that she breached the standard of care by failing to inform Bill and his family of the risks of death by AIDS in continuing to prescribe factor concentrate. However, because we could not isolate the actual lot of concentrate that killed Bill, we could not prove the doctor actually caused the death, and no money was awarded. It mattered not to Bill and Brenda. As I sat disconsolate outside the courthouse after the verdict, Bill and Brenda were elated. The story had been told and there had been two verdicts supporting our theory. Bill Jr. had not died for nothing. To the best of my knowledge, this is the only jury verdict of it's kind in a medical negligence case arising out of this scandal.
To this day, Bill and Brenda have been like family to me and we always get together on the anniversary of the verdict. Helping them and trying this case made me a humbler lawyer and a better person. They truly enriched my life. However, as the deaths of Oscar Ratnoff and Jonathan Wadleigh bring this tragedy back into the news this week, we must be reminded of and pay tribute to the 10,000 hemophiliac children, brothers, husbands and fathers that died of AIDS. As our courts now consider whether or not to "immunize" drug companies with the doctrine of FDA Preemption, let us remember those 10,000. If we forget them, it may be the biggest scandal of all.