Legal Authority to Preserve Organs in Cases of Uncontrolled Cardiac Death: Preserving Family Choice

See, generally, Childress J. F. Liverman C. T. , eds., Organ Donation: Opportunities for Action (Washington, D.C.: National Academies Press, 2006): At 205–228. Some have argued that a person's consent for organ donation should be presumed in the absence of evidence of a decision to withhold donation. Under such a legal regime, the family's traditional prerogative to make the decision regarding organ donation would be displaced by a more limited role of showing that the deceased person, while living, expressed a desire to decline donation, thereby rebutting the presumption of consent. For discussion of presumed consent, see Siegal G. Bonnie R. J. , “Closing the Organ Donation Gap: A Reciprocity-Based Social Contract Approach,” Journal of Law, Medicine & Ethics 34, no. 2 (2006): 415–423.

See Childress Liverman , supra note 1, at 153–154.

Three jurisdictions have statutory law authorizing organ preservation while family members are being contacted: Washington, D.C., Virginia, and Florida; see Childress Liverman , supra note 1, at 154. These statutes appear to have been adopted specifically to authorize preservation in cases involving cardiac death.

It would be impractical and unethical to press families to decide on the spot about organ donation (which would be required if preservation procedures were impermissible). It would also be unethical to approach families about donation before the declaration of death. Therefore, even for the most decisive families, some time after death is declared will be needed to inform them of death, approach them about donation, and allow them to decide. Even for families already at the hospital who know that death is imminent and who already have decided to consent to donation, 30–60 minutes are needed before consent can be finalized.

See, e.g., Doig C. J. Rocker G. , “Retrieving Organs from Non-Heart-Beating Organ Donors: A Review of Medical and Ethical Issues,” Canadian Journal of Anesthesiology 50, no. 10 (2003): 1069–1076, at 1069. As a result, “Of the more than 2 million deaths that occur each year in the United States, it is estimated that there are only 10,500 to 16,500 eligible donors for whom death is determined by neurological criteria.” See Childress Liverman , supra note 1, at 151.

Clark M. K. , “Solving the Kidney Shortage Crisis through the Use of Non-Heart-Beating Cadaveric Donors: Legal Endorsement of Perfusion as a Standard Procedure,” Indiana Law Journal 70, no. 3 (1995): 929–49, at 929.

As far as we know, the permissibility of organ preservation in uncontrolled cardiac death has never been litigated in the United States.

National Conference of Commissioners on Uniform State Laws, Uniform Anatomical Gift Act (1987), Prefatory Note, Uniform Laws Annotated 8A, 3–67, at 4 (2003), available at <http://www.law.upenn.edu/bll/archives/ulc/fnact99/uaga87.pdf>. (last visited October 8, 2008).

U.S. Department of Health and Human Services Advisory Committee on Organ Transplantation Recommendations, available at <http://www.organdonor.gov/research/acot.htm> (last visited October 2, 2008). The UAGA has undergone several revisions, resulting in new versions in 1987 and 2006. While all states have adopted some form of the UAGA, many have made slight modifications to the text of the Uniform Act, resulting in a regrettable decline of uniformity. Nonetheless, the provisions on which we rely in this article appear to have been adopted intact in most states; accordingly we will ordinarily refer to the language of the Uniform Act itself, rather than to the text of specific state statutes.

Uniform Anatomical Gift Act , Prefatory Note, 8 U.L.A. 71 (1968).

Uniform Anatomical Gift Act , §2 (1968); id.

Uniform Anatomical Gift Act §2(h) (1987): 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; id.

Joint Commission on Accreditation of Healthcare Organizations, Health Care at the Crossroads: Strategies for Narrowing the Organ Donation Gap and Protecting Patients, 2004, available at <http://www.jointcommission.org/NR/rdon-lyres/E4E7DD3F-3FDF-4ACC-B69E-AEF3A1743AB0/0/organ_donation_white_paper.pdf> (last visited October 2, 2008), at 30.

National Conference of Commissioners on Uniform State Laws, Revised Uniform Anatomical Gift Act, 2006, available at <http://www.anatomicalgiftact.org/DesktopDefault.aspx?tabindex=1&tabid=63> (last visited October 2, 2008).

See Childress Liverman , supra note 1, at 28.

Uniform Anatomical Gift Act (1987) §2(h).

Uniform Anatomical Gift Act (2006) §8(a).

The 2006 revision of the UAGA aims to remove one source of confusion that has arisen in cases in which people who have executed organ donation documents have also executed advance health care directives directing the withholding or withdrawing of life-sustaining treatment under specified circumstances or directing or authorizing health care agents to withhold or withdraw such treatment. Which document controls these circumstances? In § 21(b), the Act directs that the organs be preserved while the conflict is being resolved: “Before resolution of the conflict, measures necessary to ensure medical suitability of the [organs] may not be withheld or withdrawn” unless doing so is contraindicated by appropriate end-of-life care.

Iserson K. , Death to Dust: What Happens to Dead Bodies? 2nd ed. (KV Iserson: Galen Press, 2001): at 86.

After persons have been declared dead according to neurological criteria, their bodies often have wide physiologic fluctuations due in part to the loss of hormone production and regulation in the brain. Interventions undertaken to preserve organs commonly include administration of IV drugs to help control blood pressure and level of smooth muscle contraction in the vessels to maintain organ perfusion without fluid overload; administration of IV drugs to regulate fluid regulation (pressure/death of hypothalamus/pituitary-anti-diuretic hormone control); and continued use and adjustment of IV fluids to maintain fluid balance.

These invasive lines include arterial lines (tubes in artery to measure blood pressure directly and also allow easy blood draws); central lines (IV in large veins in chest allow easy IV fluid/medication administration); and catheters, such as a pulmonary artery catheter that measure cardiopulmonary parameters such as indicating fluid balance, efficiency of heart contractions, and workload on heart and lungs.

See Uniform Anatomical Gift Act (2006), §14(a) (“When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search” of relevant records “to ascertain whether the individual has made an anatomical gift.”)

See Uniform Anatomical Gift Act (2006) §14(g) (“Upon referral by a hospital … a procurement organization shall make a reasonable search for [the pertinent family member or other person authorized] to make an anatomical gift on behalf of a prospective donor.”) The drafters of the UAGA added a new provision in 2006 requiring organ preservation for the period needed to conduct an examination to determine the medical suitability of the potential donor's organs unless the deceased person is known to have expressed a contrary intent. See §14(c) of the UAGA (2006). As we read the Act, then, organ preservation is mandatory for the examination period and permitted thereafter for a reasonable period while the family members are being sought and consulted.

Uniform Anatomical Gift Act (1987), at 70.

Uniform Anatomical Gift Act (1987), §4(a)(2).

This commonsense reading is confirmed by a federal court's construction of California's version of the UAGA in Jacobsen v. Marin General Hospital, 963 F. Supp. 866 (N.D. Cal. 1997), aff'd 192 F.3d 881 (9th Cir. 1999). Jacobsen had been brought to the hospital after he was found unconscious on the side of the highway, having suffered from head trauma of unspecified cause. A search for the next of kin began within hours and continued after he was declared dead according to neurological criteria. His organs were preserved while the search continued for another day. Eventually, when the search did not lead to identification of next of kin, the coroner consented to recovery of the organs. A year later, in a federal diversity action, Jacobsen's parents sued the coroner, the hospital and the OPO for various torts arising out of the recovery of the organs. Among other rulings, the federal district court ruled as a matter of law that the search — which had actually been conducted by the coroner, the Sheriff, and the FBI — had been “reasonable” under the California Anatomical Gift Act. In the course of its ruling, the court assumed that preservation of the organs during the search was authorized by the Act.

See, e.g., Light J. A. , “Combined Intravascular and Intra-peritoneal Cooling in the Non-Heart-Beating Donor Improves Kidney Function Following Transplantation,” Transplantation Proceedings 32, no. 1 (2000): 188. Insertion of a catheter into the peritoneal space would be analogous to peritoneal dialysis or, in direct comparison to brain dead potential donors, insertion of a central line.

Unfortunately, it appears the American Medical Association (AMA) does not acknowledge the inconsistency between its support for organ preservation without explicit consent in the context of brain death and its insistence on explicit consent in the context of cardiac death. See AMA, Code of Ethics, Organ Procurement Following Cardiac Death, Section E-2.157, available at <http://www.ama-assn.org/ama/pub/category/8447.html> (last visited October 2, 2008). However, this guidance is consistent with the AMA's 2001 policy on procedures on the newly dead for instructional purposes, such as medical students practicing intubation on recently deceased patients. See AMA, Code of Ethics, Performing Procedures on the Newly Deceased for Training Purposes, Section 8.181, available at <http://www.amaassn.org/apps/pf_new/pf_online?f_n=browse&doc=policyfiles/HnE/E-8.181.HTM&&s_t=&st_p=&nth=1&prev_pol=policyfiles/HnE/E-7.05.HTM&nxt_pol=policyfiles/HnE/E-8.01.HTM&> (last visited October 2, 2008).

Uniform Anatomical Gift Act (2006), §18(a).

Virginia's illustrative version of the good-faith immunity clause mirrors the original UAGA, stating that “A person who acts in good faith in accord with the terms of this article, or under the anatomical gift laws of another state or a foreign country is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act.” Virginia Code. Ann. §32.1–295 (2006).

Several cases have analyzed the good-faith immunity clause's relationship with the rest of the UAGA, although none has raised any issue regarding organ preservation efforts or whether a “reasonable search” includes organ preservation while the search is conducted. See Nicoletta v. Rochester Eye and Human Parts Bank, Inc., 519 N.Y.S.2d 928 (N.Y. 1987); Perry v. Saint Francis Hospital and Medical Center, 886 F. Supp. 1551 (D. Kan. 1995); Seaman's v. Harris County Hospital, 934 S.W.2d 393 (Tex. App. 1996); Carey v. New England Organ Bank, 17 Mass. L. Rptr. 582 (Mass. Sup. Ct. 2004); Colavito v. New York Organ Donor Network, 356 F. Supp. 2d 237 (E.D.N.Y. 2005).

Uniform Anatomical Gift Act (1968) §7 (comment).

In Nicoletta v. Rochester Eye and Human Parts Bank, 519 N.Y.S. 2d 928 (1987), a New York appellate court defined the term “good faith” to mean “an honest belief, the absence of malice and the absence of design to defraud or seek an unconscionable advantage.” In Perry v. Saint Francis Hospital and Medical Center, 886 F. 1551 (D. Kan, 1995), the United States District Court for the District of Kansas adopted and expanded on the Nicoletta definition of good faith and observed that the immunity clause “extends protection to doctors and hospitals in all instances but where the challenged actions violate or exceed the terms of UAGA and are taken without a good faith effort to comply with UAGA.”35. See Carey , supra note 32, at 17 Mass. L. Rptr. 582 (2004).

Id., at 582. See also Seamans v. Harris County Hospital District, 934 S.W. 2d 393 (Tex. App, 1996).

Two recent cases interpret the UAGA and the good-faith immunity clause in situations in which families desired organ donation, rather than opposed it. Carey v. New England Organ Bank, 17 Mass. L. Rptr. 582 (Mass. Sup. Ct., 2004), involved parents who sued the hospital where their son died and its affiliated organ procurement center when their expressed wish that his tissue be donated was unfulfilled. Colavito v. New York Organ Donor Network, 356 F. Supp. 2d 237 (E.D.N.Y. 2005), centered on a wife who sued the organ donation network that failed successfully to donate both of her husband's kidneys, as she had desired. Neither claim was successful because the defendants were found to be immune from liability under the good faith immunity clause of the UAGA. These plaintiffs counter the commonly held view that families who sue in organ donation cases are families who oppose interference with their deceased relative's remains. Clark , supra note 6, at 937.

Newman v. Sathyavaglswaran , 287 F.3d 786, 790 (9th Cir. 2002).

Id., citing Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 18 So. 565, 567.

Foley v. Phelps , 3 N.Y. Ann Cas. 81, 1 A.D. 551, 555 (N.Y. App. Div. 1896).

See Newman, supra note 38, at 287 F.3d, at 791. ('As cases involving unauthorized mutilation and disposition of bodies increased toward the end of the 19th century, paralleling the rise in demand for human cadavers in medical science and use of cremation as an alternative to burial. courts began to recognize an exclusive right of the next of kin to possess and control the disposition of the bodies of their dead relatives, the violation of which was actionable at law.”)

Hasselbach v. Mt. Sinai Hospital , 173 A.D. 89, 159 N.Y.S. 376, 379 (N.Y. App. Div. 1916).

See Alderman v. Ford, 72 P.2d 981 (Kan. 1937); Woods v. Graham, 167 N.W. 113 (Minn. 1918); Lashbrook v. Barnes, 437 S.W. 2d 502 (Ky. 1969); Arnaud and Tolliver v. Odom, 870 F. 2d 304 (5th Cir. 1989); Crocker v. Pleasant, 778 So.2d 978 (Fla. 2001).

Fuller v. Marx , 724 F.2d 717 (8th Cir. 1984).

Brotherton v. Cleveland , 923 F.2d 477, 482 (6th Cir. 1991).

See Hasselbach, supra note 42, at 159 N.Y.S., at 378.

State v. Powell, 497 So. 2d 1188, 1192 (Fla. 1986) (quoting Prosser W. , Handbook of The Law of Torts, 2nd ed. (St. Paul: West Publishing Company, 1955): at 43–44.

In Foley v. Phelps, 1 A.D. 551 (New York App. Div. 1896), the court mentions a statute authorizing autopsy in New York, as does the 1918 Minnesota case Woods v. Graham (167 N.W. 113).

Harris-Cunningham v. Medical Examiner of New York County, 261 A.D. 2d 285, 285 (N.Y. 1999) (explaining that “We reject petitioner's argument that under [the] Public health Law, the Medical Examiner was under an affirmative duty to seek the consent of a surviving family member or friend, and that absent such consent, or ‘compelling public necessity,’ could not perform the autopsy.”)

The Virginia statute on autopsies states, “If in the opinion of the medical examiner investigating the death or of the Chief Medical Examiner, it is advisable and in the public interest that an autopsy be made. an autopsy shall be performed.” Virginia Code Ann. §32.1–285; The Virginia statute on dead bodies for scientific study states, “Any person having charge or control of any dead human body which is unclaimed for disposition, which is required to be buried at the public expense, or which has been lawfully donated for scientific study shall notify the Commissioner whenever and as soon as such body comes to his possession, charge, or control and shall, without fee or reward, permit the Commissioner or his agents to remove such body, to be used for the advancement of health science.” Virginia Code Ann. §32.1–298.

Woods, supra note 43, at 140 Minn., at 114.

See Darcy v. The Presbyterian Hospital in the City of New York, 202 N.Y. 259, 265 (N.Y. 1911) (Explaining that an autopsy not authorized by state statute was a misdemeanor.)

See Foley , supra note 40, at 1 A.D. 551.

For a recent case emphasizing the conventional view that a “common law cause of action for intentional mutilation of a corpse is essentially a cause of action for intentional infliction of emotional distress” requiring proof of “extreme and outrageous conduct that was intended to cause, or recklessly disregarded the probability of causing, emotional distress,” see Jacobsen v. Marin General Hospital, 192 F.3d 881, 887 (9th Cir. 1999). In Jacobsen, the Ninth Circuit held that such a cause of action would not lie against a hospital and OPO that recovered organs from a deceased person after an unsuccessful effort to identify the next of kin because their conduct could not have been intended to cause emotional distress in such a case.

See Hasselbach , supra note 42, at 159 N.Y., at 378.

Wages , 235 Ga. App., at 156 (The family of a deceased woman sued for negligent mishandling of a body killed in a car accident when they entered the emergency room after her death and discovered the body in the state it was in at the time death was declared. As the court explained, “[a]n intubation device protruded from her mouth, which was pooled with saliva and blood. Various tubes and IV devices were connected to her body. Her hair was matted with blood and vomit, and her face and body were caked with blood, broken glass, dirt, gravel, and grass.”)

See Hasselbach, supra note 42, at 159 N.Y., at 378.

We did not say that the risk of liability is zero; that would be foolhardy. For example, a misguided court might conclude that a family deeply offended by a hospital effort to preserve organs might recover for their distress on the theory that even a minor non-restorative alteration of the body after death without family consent is tortious. See the analysis of this theoretical possibility in Clark at 943, referring to the possibility of a broad reading of the phrase “operates upon the body of a dead person” in the Restatement (Second) of Torts, § 868 (1977).

See Childress Liverman , supra note 1, at 240. These states include Florida, Georgia, Ohio, and California.

See Powell, supra note 47, 497 So.2d., at 1192.

Id., (“Rights in a dead body exist ordinarily only for purposes of burial and, except with statutory authorization, for no other purpose.”)

Id., at 1191.

Brotherton v. Cleveland (6th Cir. 1991).

Brotherton , 923 F.2d., at 482. (“Although extremely regulated in sum, these rights form a substantial interest in the dead body, regardless of Ohio's classification of that interest. We hold the aggregate of rights granted by the state of Ohio to Deborah Brotherton rises to the level of a ‘legitimate claim of entitlement’ in Steven Brotherton's body, including his corneas, protected by the due process clause of the fourteenth amendment.”)

Brotherton , 923 F.2d. 477; Newman 497 So.2d 1188.

Newman , 287 F.3d. at 798 (Quoting Loretto, 458 U.S., at 435).

That is not the end of the constitutional analysis. The state may deprive the family of its property interest as long as it affords them due process of law. For present purposes, this means that the state has to justify drawing a distinction between corneal tissue and other body parts. This can easily be done. However our concern in this paper is the misguided premise that the family has a property interest.

Newman, 287 F. 3d., at 789–790.

As with the property analysis, it is possible that the family decisional prerogative recognized by state statues such as the UAGA has created a liberty interest for purposes of the due process clause such that the state is barred from allowing recovery of corneal tissue without advance family consent. Proponents of this position must also confront the same conceptual hurdle: The families' decisional prerogative in organ donation is a creature of state law. Having recognized family prerogatives for most body parts, why is the state precluded from making an exception for corneal tissue?.