Organ Donation Mistake Does Not Give Rise To Legal Liability

SEPTEMBER 7, 1998 VOLUME 6, NUMBER 10

Heather Lynn Ramirez died after a tragic one-car accident on March 22, 1995. Prior to her death, she had been transported to Tucson Medical Center, one of Tucson’s more prominent hospitals. Shortly after her death, a TMC social worker approached the family about the possibility of donating some or all of Heather’s organs.

After discussing the issue with the social worker, family members agreed to permit harvesting of Heather’s eyes, skin, connective tissue, veins and heart valves. One of her parents was uncomfortable about consenting to donation of bones, and so the social worker scratched that option out on the standard organ donation form. The family also insisted that Heather’s body not be disfigured, as they intended to have a full viewing.

After securing the family’s consent, the social worker contacted the American Red Cross, which manages a donor development program. The social worker conveyed the information to the Red Cross worker, but somehow the two limitations did not get included on the Red Cross’ form authorizing collection of the organs. When Red Cross staff members arrived later that night to harvest organs, they were unaware of the family’s wishes, and took the heart, femur bones and other tissues.

When Heather’s family learned that their denial of authority to harvest bones had been ignored, they sued TMC and the Red Cross for damages. Before trial, they settled their claims against the Red Cross, and pursued litigation against only the hospital. They alleged battery, gross medical negligence, breach of contract, and intentional and/or negligent infliction of emotional distress. Pima County Superior Court Judge Bernardo Velasco dismissed the claims against TMC, and Heather’s family appealed.

Arizona is one of nineteen states to adopt the Uniform Anatomical Gift Act. That law requires hospitals to approach families about organ donation, and immunizes the hospital from any liability for proceeding in good faith. TMC argued that the failure to convey the family’s limitation did not amount to bad faith, and that the hospital was not liable for the mistake. Heather’s family countered that TMC failed to precisely follow the Uniform Act, and that it could not take advantage of the immunity included in the Act.

The Arizona Court of Appeals, noted that there are currently over 43,000 Americans on various waiting lists for donated organs, and that nine persons die each day while awaiting organ donations. Based on that need, said the Court, the legislature properly granted broad immunity to transplant coordinators and hospital personnel.

It is often argued that a dead body is the “property” of the next of kin, and that mishandling of a body gives rise to a property claim. In rejecting that argument, the Court noted that the alleged property interest “did not exist while the decedent was living, cannot be conveyed, can be used only for the one purpose of burial, and not only has no pecuniary value but is a source of liability for funeral expenses. It seems reasonably obvious that such ‘property’ is something evolved out of thin air to meet the occasion, and that in reality the personal feelings of the survivors are being protected, under a fiction likely to deceive no one but a lawyer.” Any claim by family members must rely on the emotional distress caused to them by the mistreatment of the body, and that would require a showing of wanton, reckless or intentional conduct on the part of the hospital. Ramirez v. Health Partners of Southern Arizona, June 23, 1998.

Arizona’s version of the Uniform Anatomical Gifts Act includes a broader grant of immunity than the original Act. It is now clear that hospitals can rely on that extension of immunity for any action made in good faith.

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