By Leonard Bucklin
Context. Organ Procurement Organizations (OPOs) frequently refuse a decedent’s gift of organs on the stated basis that a next of kin has not given consent to the OPO’s receipt of the gift.(1) This action by OPO’s is wrong. Can you imagine a hospital refusing a million dollars given to it in a will because the surviving son did not give his consent to his father’s will? Yet that is the legal principle that OPO’s use in rejecting a decedent’s gift of organs for organ transplantation.
The state statutes have solved the questions of the transplant community. How much clearer does it have to be for the medical community? For example, in Arizona the statutes are clear. Here is the gist of them. (We will talk more about it later.)
ARS 36-842 says: * * * *. “A person who is at least eighteen years of age may: Make an anatomical gift * * * * A person * * * * may place a label designated by an organ procurement organization on the person’s driver license to notify others of the document of gift. * * * * An anatomical gift that is not revoked by the donor before death is irrevocable and does not require the consent or concurrence of any person after the donor’s death.” [Emphasis supplied.}
AR 36-845 says: “A hospital, person or entity is not subject to civil damages or legal action as a consequence of good faith acts or omissions related to procurement of parts in compliance with this article. All acts and omissions are presumed to be in good faith * * * *”
Basically the problem is that the medical community is working on 40 year old ideas doctors had before the statutes were passed. Before 1968, it was not legally clear who owned body organs after death, and whether the organs could be “given” to the newly emerging organ transplant hospitals. This lack of clarity in the ownership of body organs caused indecision in the transplant community. The Uniform Anatomical Gift Act (UAGA)(2) should have solved the indecision of the transplant community.(3)
By statute in all 50 states: the donor’s gift was explicitly prioritized over the family’s wishes on transplantation.(4) All 50 states enacted the original 1968 UAGA. The core of the statute is simple: new, clear, definite statutory law creating a right of a living person to donate (make a gift) of his/her body, making that right superior to the rights of anyone else. It resolutely allows the living owner of that body asset to distribute it on his/her death, by a simple statement on a driver’s license. The UAGA statute established a legal right of a competent person to donate their organs upon death – no matter what the family thought about it. By statute the decision of the decedent prevails over any supposed property rights of next of kin.
he medical community refused to give full effect to the law. The problem was not legal theory, adverse court interpretations, or lack of clarity of language of the statute. The problem lay in the mis-perception of the medical community about what was need to get organs from the “donor” which the medical community regarded as a dead body.
By 1987 the Uniform Laws Commissioners recognized that the medical community still “just did not get it”. Doctors, who have a penchant for not understanding legal reasoning, seemed confused about a donor who was dead, and about the ability of the decedent to make an effective donation. Hence, the Commissioners prepared a revised UAGA.(5) as word changes to remove the uncertainty of the medical community.(6) The core language is bold. The official comments are the legal equivalent of hitting a person with a 2 x 4 to get their attention.
“SECTION 8. …(a) Rights of a donee [e.g., OPO] created by an anatomical gift are superior to rights of others except with respect to autopsies under Section 11(b). . . . ..”(7)
“Comment. In subsection (a) the first sentence is a restatement of Section 2(e) of the original Act. . . . . [which] recognizes and gives legal effect to the right of the individual to dispose of his own body without subsequent veto by others. . . . If the donee [e.g., OPO] accepts the gift, absolute ownership vests in him. . . .”(8) [emphasis supplied.]
UAGA §2(h) addresses the transplant community’s consent requirement. The UAGA specifies the donor’s gift “does not require the consent or concurrence of any person.” As Arizona’s enactment of the UAGA statute says: “An anatomical gift that is not revoked by the donor before death is irrevocable and does not require the consent or concurrence of any person after the donor’s death.” But the Arizona medical community “still does not get it.”
Several states have amended their statutes to say again in various ways that the gift of organs by a donor does not require the consent of the family.(9) The driving force or pressure behind the legislation does not seem to have been a mob of next of kin shouting in the hallways of hospitals. Instead, to the shame of the OPOs they have lobbied legislatures to get the power it already has.
Where there is a signed donor card, there is no legal excuse for an OPO to seek consent of the next of kin. The state has granted authority for the gift. The family has no superior interest.
Anecdotal evidence shows that it is only the medical community and the OPOs that do not seem to get the message. Virtually everyone outside the organ business believes ORGAN DONOR on their driver’s license is sufficient to complete the donation. Indeed, they are surprised to find the OPOs think the next of kin needs to consent to the donation. The public may not know the words of the statute, (“An anatomical gift that is not revoked by the donor before death is irrevocable and does not require consent or concurrence of any person after the donor’s death.”(10)) but the public understands it.
This statutory language does not take a college graduate to understand. Still, OPOs continue to require the consent of next of kin. There is a startling difference between legal reality and the perception of legality by the OPOs which seek ‘consent’ from the next of kin of a deceased donor.
The OPO is not liable in a civil action for taking the organ without consent of the next of kin. “(C) A hospital, physician, surgeon, . . . or other person, who acts in accordance with this [Act] or with the applicable anatomical gift law of another state . . . or attempts in good faith to do so, is not liable for that act in a civil action or criminal proceeding.” [Emphasis supplied](11). Courts have consistently given the broadest possible reading to this grant of protection to the medical community. The immunity is decided by a court, not by a jury, soon after the suit has been brought. The language of the Minnesota court is typical.
“The UAGA insulates individuals involved in the organ procurement process from civil and criminal liability, so long as they act in good faith. . . . That statute provides immunity from suit, not simply a defense to liability. . . . Whether actions constitute good faith is a question of law, properly resolved on summary judgment.”(12)
The UAGA immunity clause has never been successfully attacked. It is well drafted to do just what the transplant industry wanted done. Indeed, the author of an article for attorneys on the possible rights under the UAGA concludes:
“The Uniform Anatomical Gifts Act represents the ultimate union of medical and legal ingenuity in a document which serves, without compromise of either, to preserve our expectations to both life and justice.”(13)
An extreme case for immunity protection has already been adjudicated. A nurse mistakenly communicated that there was a consent to organ donation where none in fact existed, and the state constitution provided that the right to sue for negligence would never be abrogated. Nevertheless, a court found no problem in protecting the OPO. The court held the statutory immunity against suit was absolute, baring a negligence claim by the next of kin for mutilation of a body.(14)
Thus, any lingering doubt by an OPO as to legal liability should be completely swept away by the immunity section of the UAGA (contained in both the 1968 and the 1987 versions). The language of one court in upholding the statutory immunities is instructive.
The “limitation on liability contained in [UAGA § 7 (c)] . . . is justified by the legitimate public purpose of encouraging doctors to participate in the removal of organs following death, and therefore increasing their supply.”(15)
“To require further action on the part of the defendant would not only impose an unreasonable duty upon the Hospital, but would also run afoul of public policy considerations, as such a decision would tend to jeopardize the whole process of organ donation by causing unnecessary delays, thereby frustrating the entire intent of the Uniform Anatomical Gift Act.”(16)
No physician, no hospital, no OPO has ever has been successfully sued for accepting an organ donation. The courts uniformly have recognized the validity of the statutory immunity.(17) The latest data, from a survey of all OPOs, shows of the 61 total OPOs in the United States, only 8 have been sued in the last 5 years. The 8 OPOs that have been sued ” report either 1 or 2 suits in the previous 5 years, none of which an OPO has lost….OPOs have approximately a 1 in 2500 chance of being sued…and essentially no chance of losing such suits.”(18)
Thus the data reflects what a lawyer would predict. The OPO need have no fear of suit for taking a decedent’s gift, without consent of survivors, and even against the opposition of survivors.
An ethical OPO does not refuse a decedent’s gift because the family did not also consent. The United Network for Organ Sharing’s subcommittee on ethical distribution has said:(19)
“The ideal allocation [of organs for transplantation] would be one that simultaneously maximized the aggregate amount of (medical) good, distributed the good equitably, respected the autonomous decisions of individuals, and was in accord with any other ethical principles that might come into play.”
Utility. Utility refers to the principle that the greatest good should be done for the greatest number of persons. The Task Force on Organ Transplantation took it as assumed that organs are “a national resource to be used for the public good.”(20) Taking the deceased’s donation without rejection of it, even if family members object, is more likely to increase the supply of organs. The public good is increased by the increase in the number of years of quality life available to the population. In addition to years of quality of life, consider cost. It costs less to have a healthy person after transplant than to maintain a sick person for years.
Justice. The OPO in providing justice will accept a donation of an transplantable organ, so as to assure adequacy for those on the list. Justice will also assure equality of supply for those on the transplant list at various times, in diverse parts of the country. Therefore, all OPOs should use a uniform policy of organ gift acceptance, not a policy of organ gift acceptance dependent upon a veto by next of kin.
Justice requires that the OPO consider the transplant patient in the OPO’s decisions to accept/ reject a deceased donor’s organ gift. Representing the interests of the transplant patient is done by accepting the gift of a decedent donor.
Autonomy. Autonomy is the ethical principle of respecting the self-determination of autonomous individuals. It mandates accepting the donor’s gift unless a competing equal or greater autonomy exists. The next of kin’s demand that the OPO reject the gift (i.e., the next of kin’s refusal to consent) is merely a selfish attempt to prevent the autonomous choice of the decedent.
Conclusions
Legal. If the deceased has made an anatomical gift, the OPO has the supreme right to take the organs. There is no legal reason to seek consent of the survivors.
Ethical. There is a moral imperative to accept the gift. An OPO should take a decedent donor’s organ gift, even if the next of kin objects that they do not want a deceased donor’s gift honored. An OPO that seeks the consent of next of kin, when there is a known donation by the decedent, violates the ethical principles of autonomy, utility, and justice.
Endnotes
1. Alexander M. Capron, Reexamining Organ Transplantation, 285 Journal Am Med. Assn. 334, at 335 (No. 3, Jan 17, 2001).
2. UAGA, 8A ULA 15-16 (1968).
3. Perry v. Saint Francis Hosp. & Med. Ctr., 886 F. Supp. 1551, 1557 (D. KS. 1995); see UAGA (1968), Prefatory Note, 8A U.L.A. 64-65 (1993) (recognizing need for comprehensive act addressing organ donation and concluding UAGA, wherever enacted, will eliminate uncertainty and protect all parties); see also Gloria J. Banks, Legal and Ethical Safeguards: Protection of Society’s Most Vulnerable Participants in a Commercialized Organ Transplantation System, 21 Am. J.L. & Med. 45, 67 (1995) (stating UAGA amended in 1987 to better address issues, such as concern over providing “encouraged volunteerism” system with teeth needed to increase supply of transplantable organs); and E. Blythe Stason, The Uniform Anatomical Gift Act, 23 Bus. Law 919, 921-24 (1968) (recognizing legal uncertainties of organ donation laws during pre-UAGA era as providing major basis for adoption of model act).
4. UAGA § 2 (h).
5. UAGA, 8A ULA 2, 30 (Supp. 1991).
6. “Concern had been expressed that donee organizations and hospitals had in some cases been reluctant to rely on a donor card or document of gift if relatives were opposed to the donation. Section 2(h) of the Act makes clear that a gift not revoked by the donor prior to death is irrevocable and does not require the consent or agreement of any person after the donor’s death” Martin D. Begleiter, The Uniform Anatomical Gift Act, Probate and Property 51, at 51-52 (March-April 1989).
7. UAGA § 8 (1987) which restates the 1967 similar provision.
8. UAGA § 8, Comment (1987)
9. Kentucky HB208, passed, signed into law March 8, 2000; KRS 311.237 ( “….the individual’s family members…shall not have any legal standing or authority to modify the decedent’s wishes or deny the anatomical gift from being made….”).
10. UAGA §2(h) (1987)
11. § 11(c) in the 1987 UAGA; § 7 (c) in the 1968 UAGA.
12. Rahman v. Mayo Clinic, 578 NW2d 802 at *16 (MN. Ct. Ap. 1998). The Minnesota court notes Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411 (1985) (because qualified immunity was an immunity from suit rather than mere defense to liability, it is appropriately resolved by summary judgment phase). To the same effect, see Kelly-Nevils v. Detroit Receiving Hosp., 207 Mich. App. 410, 526 N.W.2d 15, 19 (Mich. Ct. App. 1995) (question of good faith under UAGA is properly matter of law for court); Nicoletta v. Eye & Human Parts Bank, Inc., 519 N.Y.S.2d at 931 (whether hospital acted in good faith is a question of law appropriate for the court to act on by a summary judgment); Brown v. Delaware Valley Transplant Program, 420 Pa. Super. 84, 615 A.2d 1379, 1383 (Pa. Super. Ct. 1992) (quoting Nicoletta and concluding undisputed facts of record establish good faith of hospital as matter of law)
13. Daniel E. Gadzala, Anatomical Gifts: Considerations and Critiques, Medical Trial Technique Q. 464 at 478 (Summer 1992).
14. Ramirez v. Health Partners of Southern Arizona, 972 P2d 658(Ct. App. 1999).
15. Williams v. Hoffman, 223 NW2d 844 at 848-49 (WI 1974).
16. Nicoletta v. Eye & Human Parts Bank, Inc., 519 NYS2d 928 (1987).
17. Florida v. Powell, 497 So. 2d 1188 (FL 1986)(statute authorizing medical examiners to remove corneal tissue with consent of next of kin); Georgia Lions Eye Bank v. Lavant, 335 SE 2d 127 (GA 1985) (statute authorizing cornea removal upheld); Nicoletta v. Rochester Eye & Human Parts Bank, 519 NYS 2d 928 (1987) (good faith compliance with UAGA provides immunity to retrieving eyes); Williams v. Hoffman, 223 NW2d 844 (WI 1974)(UAGA immunity upheld against next of kin complaint of mutilation of a corpse.). A continuing listing is found at Anno., Tort Liability of Physician or Hospital in Connection with Organ or Tissue Transplant Procedures, 76 ARL3d 890 and its annual supplements.
18. Dave Wendler and Neal Dickert, The Consent Process for Cadaveric Organ Procurement, 285 Journal of the American Medial Assn. 329, at 332 (No.3, Jan 17, 2001).
19. 1991 Ethics Committee, United Network for Organ Sharing, Principles of Organ and Tissue Allocation and Donation by Living Donors, 24 Transplantation Proceedings (No 5- (October 1992) 2226. Author Bucklin was a member of the subcommittee, which was chaired by Robert M. Veatch, Ph.D. Dr. Veatch is Professor of Medical Ethics, The Kennedy Institute of Ethics, Georgetown University.
20. Task Force on Organ Transplantation, Organ Transplantation: Issues and Recommendations, US Dept of Health and Human Services (1986).