• Organ Procurement Organizations Protected by Good Faith Immunity
  • March 16, 2012 | Author: Judy C. Selmeci
  • Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP - New York Office
  • The operations of Organ Procurement Organizations, Tissue Banks and Eye Banks are governed by myriad regulations but few statutes. Case law interpreting those statutes is even harder to come by. While with some frequency cases are brought (and decided by appellate courts) with respect to the role of transplanting surgeons and their institutions, few decisions exist concerning the duties of OPOs. As cases relating to the various aspects of organ donation reach the appellate courts, however, the law of transplantation is beginning to take shape and OPOs are beginning to see the law emerge with respect to the standards that will apply to their operations.

    New York has recently seen its third significant decision relating to OPOs. In Nunez v. New York Organ Donor Network, New York’s Appellate Division, First Department held that the defendant OPO was shielded from civil liability where it established that it acted in good faith in its efforts to obtain consent for organ donation (and in ultimately procuring and providing for transplantation of the donor’s organs).

    The case involved obtaining telephonic consent from a foreign next of kin, who did not speak English. Translators were used to facilitate communication. Ultimately, the OPO was told (by a translator) that consent had been given. The necessary documentation was completed and witnessed. After organs were procured and successfully transplanted, the family sued, claiming that consent had not been given. They claimed that the next of kin did not understand what was asked of her. In its defense, the OPO argued that its transplant coordinator had a good-faith basis to believe that it had obtained consent (that is, it had the word of the translator). Because New York’s version of the Uniform Anatomical Gift Act affords a good-faith immunity to OPOs, the defendant OPO argued, no suit could be maintained against it regardless of whether consent was actually given. The appellate court agreed and granted summary judgment to the OPO.

    The Nunez plaintiffs also brought claims sounding in various common-law theories, such as loss of the right to sepulcher, battery and conversion. These claims were dismissed on the ground that they were subsumed into the claim alleged under New York’s Uniform Anatomical Gift Act.

    The New York Court of Appeals has ruled on another transplant-related issue. Colavito v. New York Organ Donor Network involved the directed donation of a kidney. The kidney that was sent to the intended recipient turned out to unusable. By then, the donor’s other kidney was transplanted into another recipient. The intended recipient of the directed donation sued, claiming that the second kidney should have been directed to him as well. New York’s high court held that the intended recipient of the organ could not maintain a claim against the OPO.

    The third New York case that impacts the legal landscape with respect to OPO liability is Rodriguez v. Saal. This case involved a statute of limitations question in which the Appellate Division, First Department held that a recipient’s lawsuit against an OPO was timely. The court reached this decision as it drew a significant conclusion about the services provided by the OPO. The court held that the OPO does not provide medical care; therefore, instead of the shorter, medical malpractice statute of limitations, the longer, negligence statute of limitations applied. While this ruling was adverse to the OPO in the case at issue (which was ultimately dismissed against the OPO on other grounds), it could have potentially far-reaching and favorable consequences. Should an OPO’s operations be questioned in future lawsuits, the OPO can argue that the standard to which an OPO is expected to be held is not that of a hospital or other medical provider. Instead, it can be argued that the OPO’s liability, if any, must be established on a negligence standard. In short, based on the Rodriguez decision, an OPO may take the position that it is not required to have done and known all of the things that the donor hospital or the transplant hospital must have done and known.

    Further lawsuits involving organ donation are inevitable. The courts’ decisions will bring new or refined rules for the various participants in the organ donation system, including OPOs, transplant centers and transplant physicians. As these cases make their way through the courts, it is important that OPOs, Tissue Banks and Eye Banks take the opportunity to educate the courts about the practical consequences of rules affecting donation, and to impress upon the courts the difficulty and dignity of the organ donation process. Courts that understand the process should be more likely to offer greater protection to participants of the system.