Report of the Massachusetts Task Force on Organ Transplantation

President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Securing Access to Health Care: The Ethical Implications of Differences in the Availability of Health Services (U.S. Gov't Printing Ofc., Washington, D.C.) (Vol. 1 1983) at 5 [hereinafter referred to as Securing Access].

Final Report of the Task Force on Liver Transplantation in Massachusetts (Fineberg Report) (May 1983) at 40.

Securing Access, supra note 1, at 25.

Coordinating Council, End Stage Renal Disease Network #28, Annual Report to the Secretary of Health and Human Services for Calendar Year 1982 (July 1, 1983).

Krakauer H. , The Recent U.S. Experience in the Treatment of End-Stage Renal Disease by Dialysis and Transplantation, New England Journal of Medicine 308(26): 1558–63 (June 30, 1983).

Personal communication with N.L. Tilney.

Griepp R.N. , A Decade of Human Heart Transplantation, Transplantation Proceedings 9: 265–91 (1979).

Shumway N.E. , Cardiac Replacement in Perspective, Heart Transplantation 3: 3–5 (1983).

Shumway N.E. , Recent Advances in Cardiac Transplantation, Transplantation Proceedings 15: 1221–24 (1983).

Thompson M.E. , Selection of Candidates for Cardiac Transplantation, Heart Transplantation 3: 65–69 (1983).

Pennock , Cardiac Transplantation in Perspective for the Future: Survival, Complications, Rehabilitation and Cost, Journal of Thoracic and Cardiovascular Surgery 83: 168–77 (1982).

Reitz B.A. Stinson E.B. , Cardiac Transplantation 1982, Journal of the American Medical Association 248(10): 1225–27 (September 10, 1982).

Cardiac Homotransplantation, Current Problems in Surgery, 16: 3 (1979).

Reitz B.A. , Heart-Lung Transplantation: A Review, Heart Transplantation 1: 8 (1982).

Moore F.D. , Experimental Whole Organ Transplantation of the Liver and Spleen, Annals of Surgery 152: 374–87 (1960).

Calne R. , Liver Transplantation (Grune & Stratton, New York, N.Y.) (1983).

Public Health Service, Assessment of Liver Transplantation (U.S. Gov't Printing Ofc., Washington, D.C.) (1983).

Starzl T. , Evolution of Liver Transplantation, Hepatology 2: 614–36 (1982).

Myers B.D. , Cyclosporine-Associated Chronic Nephropathy, New England Journal of Medicine 311(11): 699–705 (September 13, 1984).

Annas G.J. Glantz L.H. Katz B. , The Rights of Doctors, Nurses, and Allied Health Professionals (Ballinger Books, Cambridge, Mass.) (1981) at 224–25.

Commonwealth v. Golston, 366 N.E.2d 744 (Mass. 1977), cert, denied, 434 U.S. 1039 (1978). See President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death (U.S. Gov't Printing Ofc., Washington, D. C.) (1981) at 136–38.

Annas G.J. , Life, Liberty, and the Pursuit of Organ Sales, Hastings Center Report 14(1): 22–23 (February 1984).

Much of this section relies on ideas in or derived from the work of Professor Guido Calabresi of Yale Law School, especially from Calabresi G. Bobbitt P. , Tragic Choices (Norton, New York, N.Y.) (1978).

Fletcher J. , Our Shameful Waste of Human Tissue, in The Religious Situation ( Cutler D. R. , ed.) (Beacon Press, Boston, Mass.) (1969) at 223–52.

Fox R. Swazey J. , The Courage to Fail (University of Chicago Press, Chicago, Ill.) (1974) at 232.

Sanders D. Dukeminier J. , Medical Advance and Legal Lag: Hemodialysis and Kidney Transplantation, UCLA Law Review 15(1): 15 (1968).

Rettig R.A. , The Policy Debate on Patient Care Financing for Victims of End-Stage Renal Disease, Law & Contemporary Problems 40(4): 40 (Autumn 1976).

Tragic Choices, supra note 23.

Securing Access, supra note 1, at 25.

Tragic Choices, supra note 23.

Bayer R. , Justice and Health Care in an Era of Cost Containment: Allocating Scarce Medical Resources, Social Responsibility 9: 37–52 (1984). See Annas G.J. , Allocation of Artificial Hearts in the Year 2002: Minerva v. National Health Agency, American Journal of Law & Medicine 3(1): 59–76 (Spring 1977).

Commentary: UK's Poor Record in Treatment of Renal Failure, Lancet, p. 53 (July 7 1984).

A 1969 study of the criteria employed by kidney dialysis centers in the United States found that the eight most frequently employed criteria were: (1) willingness to cooperate in treatment regimen (86 percent); (2) medical suitability (79 percent); (3) absence of other disabling disease (69 percent); (4) intelligence to understand treatment (34 percent), (5) likelihood of vocational rehabilitation (32 percent); (6) age (20 percent); (7) primacy of application for available vacancy (26 percent); and (8) psychiatric evaluation (25 percent). Fox & Swazey, supra note 25, at 230. The family question, as put to candidates at Stanford's heart transplantation center has been, “Does the patient have a strong supportive family willing and able to withstand the apprehension, anxiety, fear, waiting, fatigue, separation, euphoria, disappointment, and grief that the different phases of cardiac transplantation entail? Does the family have enough strength to provide continuing support to the patient as well as to manage the stresses of cardiac transplantation themselves?” Id. at 310–11.

Most, but not all, liver transplant programs exclude active alcoholics from consideration for liver transplantation The Boston Center for Liver Transplantation, for example, excludes alcoholics who have not abstained for less than two years, and more generally excludes “active drug or alcohol” users. The Brigham and Women's Hospital's Guidelines for Cardiac Transplantation are somewhat less explicit, asking referring physicians to consider “a history of alcohol or drug abuse, or mental illness that would complicate post-transplantation followup” as a “contraindication to cardiac transplantation.” The Task Force concluded that blanket exclusions, like that of the Liver Center, are arbitrary and tend to reinforce negative and destructive societal stereotypes. Accordingly, such individuals should not be per se excluded from screening if they want a transplant. On the other hand, it is reasonable and proper to consider the impact of the patient's substance abuse or mental illness on the probability of successfully following an immunosuppression regimen and being physically rehabilitated following transplant. Although such a judgment will also have large subjective elements, it is here, rather than on the disease of substance abuse itself, that the decision should focus.

Evans R.W. , Health Care Technology and the Inevitability of Resource Allocation and Rationing Decisions, Part II, Journal of the American Medical Association 249(16): 2208–17 (April 22/29, 1983).

Id.

The New England Organ Bank is in the process of changing its policy, but the following summarizes what it was. One of the two kidneys goes to the regional center that covers the hospital that procured it and the kidney is used at the hospital's discretion. The other is distributed on the basis of matching. Kidney matching is generally done on the basis of tissue compatibility to minimize the probability of rejection. Most importantly, the recipient must be crossmatch negative; i.e., there must not be a reaction when the recipient's blood is mixed with the white blood cells of the donor. If there is, there is likely to be a severe and early rejection of the kidney. If there is not, a patient in immediate need of a kidney may obtain one on this basis alone.