The Gift of Life: Understanding Anatomical Gift Law

By David L. Freedman, MD, PC, Emergency Department Physician, Chelsea Community Hospital; Associate, Health Law Practice Group, Miller, Canfield, Paddock, and Stone, PLC, Ann Arbor, MI.

Editor's Note: The demand for organs far exceeds the supply. In 1996, there were 33,151 registrations for a kidney transplant. Despite this demand for necessary organs, many usable organs and tissues are still not harvested and go to waste, even with significant legislative and educational efforts. However, Emergency physicians can play critically important role in organ and tissue donation. Without the active involvement and leadership of emergency physicians, donor organs and tissue can, and unfortunately often are, needlessly wasted. It is emergency physicians who, through their compassionate and knowledgeable interactions with the relatives of the recently deceased, can play a key role in facilitating the recovery of usable organs and tissue.

Background

The demand for organs and tissue is currently high and growing. As of August 7, 1996, the United Network for Organ Sharing reported 47,000 registrations on its organ transplant waiting list. Among those were:

• 33,151 registrations for a kidney transplant

• 6,809 registrations for a liver transplant

• 3,659 registrations for a heart transplant

• 2,137registrations for a lung transplant.1

In contrast to these numbers, the number of transplants actually performed during the calendar year of 1995 was:

• 10,891 kidney transplants

• 3,922 liver transplants

• 2,361 heart transplants

• 871 lung transplants.1

As troubling as this discrepancy is between organ demand and supply, it would be even more distressing if we were to include the considerable number of patients who are never added to the transplant waiting lists because their physicians know that their medical condition and priority would only doom them to having no real chance to ever receive an organ.

The inevitable consequences of this discrepancy between organ demand and supply are the deaths of the patients who are on organ transplant waiting lists and never receive a transplant. In 1996, the National Organ Procurement and Transplant Network published the following statistics representing the number of people on their waiting lists over a one year period who had died while still waiting for a transplant:

• 1,814 patients awaiting kidney transplants

• 954 patients awaiting liver transplants

• 746 patients awaiting heart transplants

• 385 patients awaiting lung transplants.1

The total number of reported deaths of patients on the National Organ Procurement and Transplant Network registration list in 1996 was 3,916.2 We can only expect to see this number rise as the organ supply grows slowly, at best, and the demand increases much more rapidly. Because of medical advances and the success of transplants (improved surgical technique and immunosuppressant drugs), individuals who in the past would never have been placed on an organ waiting list now are. As a result of our successes in organ transplantation, the disparity between demand and supply will continue to widen.

All physicians who are involved with organ donation-and this will include most, if not all, emergency physicians-must be aware of the laws pertaining to organ and tissue donation. Despite the fact that a Uniform Anatomical Gift Act (UAGA) was developed and then widely adopted by the states, variations in state law persist. The original UAGA was drafted in 1967 and was promptly adopted by all of the states, although there were some variations, generally minor, in the individual state statutes. A second UAGA was drafted in 1987 and has now been adopted, again with some variation, in 18 states. As a result of the development of the second UAGA, there are currently two different uniform laws in effect in the country. While there is certainly much more uniformity in organ donation law among the states since the 1968 Act was widely adopted, there is still variation, sometimes significant, between the states. Because of the variation among the states, each ED must have specific policies in place, which are in compliance with all applicable state and federal law, for requesting organ and tissue donation. In fact, portions of these organ and tissue procurement procedures and policies have been legislatively mandated. In addition to hospital policies, each regional organ procurement agency will have in place its own policies regarding the harvesting of organs and tissue, and cooperation between hospitals and their local organ and tissue procurement agency is to be encouraged.

The vast majority of Americans support the concept of organ and tissue donation, and this consensus has been consistently demonstrated in national and statewide polls. A national Gallup Poll in 1993 found that 85% of those people polled supported organ donation.3 This support was not gender-specific, with 87% of men and 83% of women supporting organ donation. In a 1995 study of 834 Iowans, 97% of respondents supported the donation of organs for transplant.4 While the level of support for organ donation was quite high, only 43% of those people in Iowa who generally supported organ donation had made the appropriate notation on their driver's license. Given the fact that organ procurement agencies, as a general rule, will not harvest organs without a relative's consent, what would be more important would be that individuals discuss their desire to donate their organs with their families. Unfortunately, the frequency of these discussions may not be any greater than the 43% who had noted their desire to donate on their licenses. Despite this overwhelming support for organ donation, the gap between the demand for organs and the available supply continues to widen.5

Significant obstacles to organ and tissue donation remain, including concerns that the body will be mutilated, that the harvested organs will be sold, that medical care will be compromised in order to facilitate the death that must occur prior to organ harvest, and that organs will be removed prior to death. There is also a reluctance to think about death and discuss organ donation, and various religious suppositions can imped with donation.6

Historical Legal Development

The controversy as to whether a person could hold a "property right" in the body of a deceased relative dates back to the early days of the English common law.7Blackstone, the famous commentator of the early English common law, stated in his Commentaries that "no property right exist[s] relative to a dead body" under the common law.8Courts have continued to recognize that there is no property rightin the commercial sense to the body of a relative and that the laws relating to wills and the descent of property do not apply to a relative's body.9The situation, however, is far from simple, as courts do recognize a right (or duty) to arrange burial and a right to maintain the security of the interred body (within limits)-a so-called "quasi-property right."9

Courts in America have created this legal fiction of a "quasi-property right" in a corpse that is held by the next of kin. This "quasi-property right" gives the next-of-kin certain rights over the body of a decedent that will be protected by the courts. These rights and responsibilities include the right to custody of the body, to arrange burial, and to prevent the corpse from disturbances after burial (with certain court-ordered exceptions).10

The Uniform Anatomical Gift Act of 1968

In response to the wide variation in state laws regarding organ and tissue donation, the National Conference of Commissioners on Uniform State Laws (NCCUSL) met in August 1967 to develop what became the Uniform Anatomical Gift Act of 1968 (1968 Act).11The purpose of the NCCUSL is to promulgate model statutes in diverse areas of the law, which then can be adopted by the various states-the hope being that the Uniform Acts will be adopted with little if any variation by all the states, thereby resulting in uniformity of law across state lines.12The NCCUSL noted in its Prefatory Note to the 1968 Act that, as regards the law of organ donation, "both the common law and the present statutory picture is one of confusion, diversity, and inadequacy."
13The purpose, then, of the commissioners was to provide a "comprehensive approach to organ donation."14The commissioners' hope for widespread acceptance of the 1968 Act was promptly realized when it was adopted, in substantially unchanged versions, by all states and the District of Columbia by 1971, with 41 states having adopted it within 18 months of its presentation.15

The goal of the NCCUSL in drafting the Act was to address the principal legal questions in the area of anatomical gifts, which were listed in the Prefatory Note. (See Table 1.)

The Preferatory Note questions highlight the major areas of legal confusion that the commissioners sought to clarify in drafting a model act to be presented to the various states for adoption. The commissioners' task was not easy, as they had the difficult job of balancing all of the competing interests in this highly charged and emotional area of the law. Their goal was to balance the wishes of the deceased, the wishes of the surviving family, society's need for human organs, and the states' interest in preserving life.

The 1968 Act met with widespread approval and was, as mentioned above, adopted by all states within three years. Currently, approximately 32 states have anatomical gift statutes that are based on the 1968 Act. While there were (and are) slight variations among the states, which have led to somewhat less than complete uniformity, the 1968 Act was substantially adopted as drafted. Most of the variations have been minor (e.g., Alaska set its minimum age for donation at 19 years of age, rather than 18).17 The remaining 18 states have adopted a later uniform act, the Uniform Anatomical Gift Act of 1987 (discussed infra), or in the case of Indiana, a hybrid of the two acts.

The 1968 Act consists of seven major sections. Descriptions of the sections herein pertain to the Uniform Act itself, and physicians must consult their particular state's statute, since variations, generally minor, do exist. Section 2 of the 1968 Act provides for individuals "of sound mind and 18 years of age or more [to] give all or any part of his body . . . to take effect upon death." In addition, the Section establishes a priority list of individuals who may, "in the absence of actual notice of contrary indications by the decedent . . . give all or any part of the decedent's body." The order of priority is: l) spouse; 2) adult son or daughter; 3) either parent; 4) an adult brother or sister; 5) a guardian of the person of the decedent at the time of his death; and 6) any other person authorized or under obligation to dispose of the body.18 The 1968 Act also requires that the individual making the donation not have any actual notice of "opposition by a member of the same or a prior class."18 The donation therefore can be made by a listed individual, so long as there was no known objection by the decedent, or any objection by an individual in the same or a higher priority classification. Of note is the fact that the final priority classification is "any other person authorized or under obligation to dispose of the body," a group that would include relatives not listed in the 'order or priority,' and non-relatives including the coroner or medical examiner.18

Section 4 of the 1968 Act specifies the manner in which an anatomical gift may be made. There are two ways in which an anatomical gift document may be executed-by will or by a written document other than a will. Section 4(a) specifically allows for an anatomical gift to be "made by will-a significant extension of traditional estate law to be sure."19 Such a provision will (and obviously must) be effective without waiting for probate, since such a delay would make the donation worthless. In fact, the anatomical gift provision in the will is effective, even if the will is otherwise found, for whatever reason, to be invalid. The second available method of executing an anatomical gift document is by a written document that is not a will. Such a document "may be a card designed to be carried on the person, [and] must be signed by the donor [in the presence of 2 witnesses who must sign the document in his presence]" (e.g., the back of a driver's license).19 A gift made by a relative need not be in writing and signed, but rather may be made by "telegraphic, recorded telephonic, or other recorded message," since the decedent's relatives may be far from the place of death.20

There is, in Section 6, a provision for amendment or revocation of the gift. An individual may revoke his anatomical gift document by: l) executing and delivering to the donee a signed statement of revocation; or 2) an oral statement of revocation in the presence of two persons that is communicated to the donee; or 3) a statement during a terminal illness or injury to an attending physician and communicated to the donee; or 4) a signed card or document found on the decedent's person or in his effects.21 If the gift was made by will, it may be modified or revoked according to the manner prescribed for the revocation of wills, a matter of individual state law.21 These provisions are obviously crucial to assure that the ultimate desires of the potential donor will be carried out.

Section 7, which contains the limitation of liability provision, is a crucial portion of the Act. First, this section addresses the determination of the time of death-"The time of death shall be determined by a physician who tends the donor at his death."22 The Act leaves the determination of death to the attending physician, who should determine death by accepted medical standards. There is no attempt to try to statutorily specify a method of determining the time of death (a strength or weakness of the 1968 Act, depending on who the commentator is). The Act does, however, provide that the physician who makes the determination of death "shall not participate in the procedures for removing or transplanting a part," so as to avoid any possible appearance of a conflict of interest.22 (This concern of a conflict of interest remains a concern of a small, but significant, number of potential donors and their families.) Most importantly, this section contains, in §7(c), a limitation of liability: "A person who acts in good faith in accord with the terms of this Act or with 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."22 Interpretation of this section is often determinative in deciding cases related to anatomical gifts, as will be seen in the cases described later in this article. Courts have followed the intent of the drafters, who stated in the Comment Section, that the immunity section "merits genuinely liberal interpretation to effectuate the purpose and intent of the Uniform Act, that is, to encourage and facilitate the important and ever-increasing need for human tissue and organs."22

Shortcomings of 1968 Act

The 1968 Act was not without its shortcomings. One of the major perceived shortcomings was the donor card system.23Despite the fact that it was the intent of the commissioners, and the statutory language is clear to the effect that a properly executed donor card would be a legally binding document, in practice, it has not been treated that way. Rather, consent from the decedent's relatives is routinely sought, and no donation takes place without the relatives' consent, even if there is a valid donor card. Organ procurement agencies have generally not been willing to subject themselves to the potential legal challenges and bad public relations that could result if organs were harvested, and then, after the harvest, relatives are upset and bring legal action against the procurement agency. Fifteen years after implementation of the law, only California, Colorado, Florida, and Wyoming were taking full advantage of the 1968 Act and harvesting organs solely on the authority of a donor document.24The 1968 Act was also criticized for its apparent inability to substantially increase the supply of organs for transplant.25According to American Red Cross statistics, although there were more than 23,000 potential donors killed in accidents in 1991, organs were harvested from only about 3,000.26These were two of the primary issues that the commissioners sought to address when they met in 1985 to discuss possible revisions of the 1968 Act.

The Uniform Anatomical Gift Act of 1987

In response to proposals for improvements in the 1968 Act, the NCCUSL began work in 1985 to draft amendments to the Act, and the 1987 Uniform Anatomical Gift Act (1987 Act) was approved in 1987, and has subsequently been adopted, in large part, by 18 states.27One state, Indiana, has chosen to adopt a true hybrid of the 1968 and 1987 Acts. The Prefatory Note to the 1987 Act identified the key problems, in the opinion of the commissioners, that continued to hinder organ donation.
(See Table 2.)

Unfortunately, while the important concerns of this Preferatory Note were identified and addressed, the changes enacted in the 1987 Act have not substantially improved the supply of organs for transplantation.28

The 1987 Act consists of 17 sections, compared to 11 in the 1968 Act. There were a number of significant changes from the 1968 Act that were made in the 1987 Act, although most sections were left substantively unchanged.

Section 2(h) of the 1987 Act clarified the fact that an individual's donation of his or her organs and/or tissue cannot be overridden.29 This point was not sufficiently clear in the 1968 Act and, as a result, transplant services were unnecessarily requesting consent from relatives when the donor had already executed a valid donor card. (The practice of not harvesting organs or tissue without the consent of relatives, even when a legally binding donor instrument has been executed, remains the practice today.) As a result, significant numbers of potential organs and tissue for transplantation are lost.30

Section 4 provides, in certain cases, for the medical examiner to authorize the donation of tissue from a body that is in the custody of the medical examiner.31 The medical examiner must make a "reasonable effort" to locate the decedent's relatives and give them the option to object, and must also have no actual knowledge of a refusal to donate by the decedent or an authorized relative.31

Section 5 requires routine inquiry regarding organ and tissue donation of patients, "on or before admission to a hospital," as well as of relatives, "at or near the time of [the] death of a patient."32

Section 9 prohibits the sale or purchase of "a part for transplantation or therapy if removal of the part is intended to occur after the death of the decedent."33 Interestingly, the section does not proscribe the sale of "parts" by living donors, if harvest is intended to take place before death.34 This section, however, is effectively preempted by Federal law, which prohibits the purchase or sale of human organs for transplantation (discussed infra).35

Positive response to the 1987 Act has not been as widespread as was the response to the 1968 Act. Resistance to adoption of the 1987 Act has been attributed in particular to concerns regarding sections 4 and 5(a).36 Objections have been raised to the "presumed consent" aspect of Section 4, which allows for the harvest of tissues without the family's consent, or even knowledge. Many states already had presumed consent/removal statutes, but they were, and are, generally limited to the removal of corneas and pituitary glands. This section went significantly beyond the then-existing removal statutes. Section 5(a) has provoked even more controversy than Section 4. The required inquiry at the time of hospital admission has, in most states, not been adopted. While proponents of this section feel that it would increase donation, opponents have been concerned that it might have the opposite effect, and might "actually dissuade potential donors because of the timing or setting."37 It is not clear which side is right, but what is clear is that just after death is not a very opportune "timing or setting" for the discussion of organ and tissue donation. Finally, there has been an understandable lack of urgency regarding the adoption of the 1987 Act, because all states already had in place a version of the 1968 Act, a situation quite different than in the late 1960s, when there was no uniformity regarding organ donation law.

Other State Statutes Governing Anatomical Gifts

The method of determination of death and the timing of death is not specified in either of the Uniform Anatomical Gift Acts. Each state, however, has a Determination of Death Act, usually a version of the Uniform Determination of Death Act, which addresses this issue.38The Uniform Determination of Death Act, developed in 1980, was another effort of the NCCUSL. The Michigan Determination of Death Act, modeled after the Uniform act, provides that an individual is dead if that individual has sustainedeither "irreversible cessation of circulatory and respiratory functions,"or "irreversible cessation of all functions of theentire brain, including the brain stem."39Such a determination is to be made "in accordance with accepted medical standards."39The method of ascertaining when these conditions of death have been met, therefore, is left to physicians, and this method is left open to change as medical science evolves. Obviously, solid organ transplants would not be feasible had the brain death criteria not been added to the more traditional definition of death-irreversible cessation of circulatory and respiratory function. The addition of the brain death definition allows the removal of usable organs, without the removal being considered to be the cause of the patient's death.

States may have specific cornea removal statutes, which have been enacted either prior to or in addition to the UAGA.40 These statutes authorize corneal removal by the medical examiner or his or her designee without permission of the next-of-kin or even notification of the next-of-kin in certain circumstances. Generally, if an autopsy has been authorized to be done by the county medical examiner, and the medical examiner has no knowledge of any objection to corneal removal by the next-of-kin of the decedent, the corneas may be removed without notification of the next-of-kin.40 As in the case of decedents with valid organ donor cards and no consent of a relative, organ procurement agencies generally will not, as a matter of policy, seek tissue in these cases despite the legality of the tissue harvest.

The 1968 Act, while facilitating organ donation, did not actively encourage donation. In order to more actively encourage organ and tissue donation, most states adopted "routine inquiry/required request" laws in the mid-1980s.41 These statutes prescribed specific protocols for the timely request of organ and tissue donations. These state statutes have now been preempted by Federal law mandating routine request (described in below).

Federal Statutes Governing Anatomical Gifts

The National Organ Transplant Act (NOTA) was enacted in 1984.42This legislation provided for the creation of regional organ procurement organizations to coordinate the procurement of organs, and a national organ procurement and transplant network. Currently, the Federal government contracts with the United Network for Organ Sharing (UNOS) to provide the national organ procurement and transplant network.43Additionally, NOTA prohibits the purchase and interstate sale of organs (effectively eliminatingany sale of organs for transplantation). The intent of the ban on the sale of organs for transplant was to ensure that the organ donation process would remain altruistic rather than commercial.

Federal law now requires, as an amendment to the Social Security Act (OBRA 1985), that hospitals participating in Medicare or Medicaid have established written protocols for the identification of potential organ donors that:

l. assure that families of potential organ donors are made aware of the option of organ or tissue donation and their option to decline;

2. encourage discretion and sensitivity with respect to the circumstances, views, and beliefs of such families; and

3. require that such hospital's designated organ procurement agency is notified of potential organ donors.44

Thus, required request is now mandated under Federal law.

Current and Future Issues

In the United States, a variation of presumed consent has been applied in very limited circumstances-corneal removal statutes. In certain areas of Europe, presumed consent is the law.45Even there, however, families are often asked for permission as a matter of custom and, as a result, presumed consent is effectively negated.45Some have argued for an expansion of presumed consent in the United States such that it would be presumed that a decedent wanted to be an organ donor, and persons who do not wish to donate their organs and tissue must sign non-donor cards.46Pure presumed consent laws allow the removal of organs regardless of the wishes of the decedent's family, unless the decedent has opted out by, for example, signing a "non-donor" card (e.g., France).46Modified presumed consent laws allow the removal of organs unless the decedent has opted outor the family objects. In these countries, though, it is generally not required for the physician to advise the family of their right to refuse, which effectively erects somewhat of a barrier to the refusal of donation (e.g., Sweden).46

Conceivably, a system could be devised where organ donation would be compulsory. Under such a system, upon death, organs would belong to the state and could be harvested, regardless of the wishes of the decedent or the decedent's family. It seems highly unlikely that such a provision would withstand a Constitutional challenge, and courts would likely find a sufficient property right in a decedent's organs such that compulsory donation would run afoul of the individual's Constitutional property rights.47 Constitutional challenge aside, such a system would be morally offensive to the majority of Americans.

Current Federal law prohibits the sale of organs for transplantation (NOTA), but it has been argued that allowing the sale of organs might increase the supply. We do, after all, allow for the sale of blood products, a practice that coexists with the donation of blood. Allowing the sale of organs raises many ethical issues, not the least of which would be the potential exploitation of the poor, who would have an incentive to sell their organs-organs that only the rich, or insured, could afford to buy. The Iowa study, cited earlier, found very little support for the idea of compensating organ donors. The important concern has also been raised that once a market for organs is allowed, the voluntary donation of organs will cease.48

The ethical issues raised by allowing a market approach to transplantable organs would certainly be less controversial than the ethical issues raised by proposals to allow the "donation" of organs from anencephalics and/or persons in persistent vegetative states.49 Currently, this source of organs is unavailable because, ethical issues aside, such persons are not dead under current legal standards and are also obviously unable to give consent.

Illustrative Cases

Courts have generally decided organ and tissue donation cases in light of their understanding that there is a strong public policy (and national consensus) favoring organ and tissue donation. Litigation involving organ and tissue donation primarily involves actions by relatives of decedents who bring suit because tissues have been harvested allegedly without proper consent of the family.

Case #1: Nicoletta v. Rochester Eye and Human Parts Bank, Inc., et al50

Peter Nicoletta, the deceased, was injured in a motorcycle accident and was taken to the defendant hospital. A woman arrived at the hospital, identified herself as Peter Nicoletta's wife, and signed the emergency room "face sheet" authorizing emergency treatment of her "husband." She signed the chart "Judy Shufelt," with "wife" in parentheses following her signature. In fact, however, Ms. Shufelt was not Peter's wife. While she was not his wife, she had lived with him for 10 years and was the mother of his two children. The decedent's parents arrived shortly thereafter and all were advised that Peter had died. Ms. Shufelt then left the hospital.

Several hours later, Ms. Shufelt returned to the hospital to arrange for the donation of Peter's organs. The emergency department charge nurse prepared a handwritten document giving permission to have Peter's eyes removed by the regional Eye Bank. Ms. Shufelt this time signed the form "Judy Nicoletta (wife)." Having received consent, the decedent's eyes were subsequently removed by the Eye Bank.

Mr. Nicoletta, Peter's father, brought suit against the hospital and the Eye Bank, claiming that the donation was not properly authorized and that the "good faith" provision of the New York version of the UAGA was not satisfied, and should therefore not provide an affirmative defense (i.e., immunity) for the hospital and the Eye Bank. Since it was clear that Ms. Shufelt did not have the authority to authorize the donation of Peter's eyes, the real issue in the case was whether the "good faith" provision of the UAGA would provide immunity. In this case, the plaintiff argued that the defendants had not acted in "good faith" in accepting the signature of Ms. Shufelt as authorization, particularly since she had signed documents in the same ED, within several hours, with two different names.

The court first took notice of a basic definition of "good faith," as "honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage."51 The next step in the court's decision, which was crucial, was to rule as to whether the determination of "good faith" was a question of fact (i.e., for the jury) or of law (i.e., for the court). As a general rule, an issue of good faith would be one of fact and therefore be decided by the jury. In this situation, however, the court found that the legislature had provided an objective standard by which to measure "good faith," and, therefore, the decision was for the court. Having so decided, the court could then consider the defendant's motion for summary disposition, which, if granted, would lead to dismissal of the case, without it ever reaching the jury. The court then found that the defendants had acted in "good faith," even though the hospital employees knew that Ms. Shufelt had signed the different hospital forms with two different names. The case was dismissed. This case illustrates the power of the "good faith" immunity protection conferred by the UAGA.

Case #2: Georgia Lions Eye Bank Inc. v. Lavent52

This 1985 case was brought to Georgia state court by a mother who alleged that corneal tissue had been wrongfully removed from her infant in violation of her Constitutional right of due process. The infant had died of sudden infant death syndrome and the eyes had been harvestedwithout the consent of the infant's parents. The parents had not objected to the removal of the tissue; however, they had not been given the opportunity to object in that they were never asked to give consent for the donation and, in fact, had not even been notified that the eyes would be harvested. At issue was the constitutionality of the Georgia cornea removal statute, which authorized, under certain specified circumstances, the removal of corneal tissue from a decedent, if no objection had been made by the decedent while alive, or by the next-of-kin after the decedent's death. The lower court held that the statute was "violative of due process because it deprives a person of a property right in the corpse of his next-of-kin and fails to provide notice and an opportunity to object."53(Remember, as discussed above, "property rights," per se, in dead bodies are not recognized under common law.)

The opinion of the Supreme Court of Georgia had a strong public policy overtone, a tone that is common in judicial opinions addressing this issue. The court noted that the statute in question had been passed by a "virtually unanimous General Assembly," and that "before its passage, approximately 25 corneal transplants were performed each year," while after its passage "more than 1000 persons regained their sight through transplants."53 This strong statement of public policy foreshadowed the court's balancing of the statute's public benefit against its infringement on an individual's rights (here, the parents of the infant). Near the end of the opinion, the court, in explaining its balancing of interests, quoted a lower court that had said that, "the preservation of the public health is one of the duties devolving upon the State as a sovereign power. In fact, among all the objects sought to be secured by governmental laws, none is more important than the preservation of the public health."54

The court went on to note that any "quasi"-property right that a relative might have in the body of a decedent was one that was created by the courts (i.e., common law) and was not a right created by either the United States or Georgia state constitutions.55 Once the court found that this right was not constitutional, but only a common law right (if present at all), it found no problem in reversing the lower court and upholding the statute, since, according to the court, the legislature has every right to modify or abrogate a common law right of action.55 The statute, which allowed for the harvest of corneas, in some cases without the consent of the next-of-kin or even notice to the next-of-kin, was upheld.

Case #3: Elwayne Glor et al v. Dialysis Clinic, Inc. DBA Golden State Transplant Service56

This 1994 California case involved a woman who received a cadaveric kidney transplant and subsequently died of malignant melanoma, a cancer that was found to have been transmitted through the transplant. The allegation of the plaintiff was that the transplant service was negligent in screening the kidney donor and should have ascertained that the donor potentially had melanoma at the time of her death. The donor had undergone a biopsy three years prior to her death that had shown a "possible malignant melanoma." This history, however, was never communicated to the transplant service. In fact, the donor's husband testified that he and his wife (the donor) had been told, after the biopsy, that the lesion had been benign. The donor had died of an intracerebral bleed and had undergone a CT scan prior to her death. The CT scan report stated that "the pattern of hemorrhage may be secondary to anterior communicating artery aneurysm rupture,although other underlying process such as neoplasm is also possible" (emphasis added). Whether this report was on the donor's chart for review by the organ procurement or transplant personnel was in dispute. The plaintiff also contended that there would have been a large scar on the donor's back from the previous excisional biopsy, which should have raised the suspicion of a previous melanoma. The existence of any such scar was also in dispute at the trial. Finally, the plaintiff contended that the transplant coordinator had a duty to contact the donor's previous physicians and thereby would have discovered the possible history of melanoma.

A jury found for the defendants in this case, agreeing that the transmission of cancer by organ transplantation was a known risk and that, based on the data available to the transplant coordinator at the time of the organ harvest, there was no breach of the standard of care by the transplant service. Of note is the fact that this trial court did not allow testimony as to the immunity provided for by the UAGA's "good faith" provision and refused a jury instruction on the Act. It is not clear what the court's reasoning was, and, had the plaintiff prevailed in the case, this surely would have been an obvious issue for appeal.

Case #4: Hinze v. Baptist Memorial Hospital, Mid-South Eye Bank Sight Restoration, Inc.57

In this case, the plaintiff, who was the next-of-kin of the decedent, filed suit alleging the wrongful removal of the eyes of the decedent, in violation of Tennessee's version of the UAGA. The decedent had been pronounced "dead on arrival" at Baptist Memorial Hospital (BMH) and an individual, who represented himself as the decedent's grandson, gave consent for the removal of the eyes. He signed a standard tissue donation form that was witnessed by two nurses, employees of the defendant hospital, BMH. The person giving consent, however, unbeknownst to the hospital and the Eye Bank, was not in fact the decedent's grandson, nor authorized in any way to make a tissue donation (he was not actually a relative of the decedent).

The issue of interest here is the Appeals Court's interpretation of the immunity provision of the UAGA. The Tennessee statute provided for immunity to those acting in "good faith" in the organ donation procedure. The court, at the outset, decided to follow the Nicoletta court, (supra), which had found that the determination of "good faith" was for the court, not the jury (i.e., a question of law). Having decided that the issue was a matter of law (not fact), the court held that both BMH and the Eye Bank had acted in "good faith" and were not liable for any damages. There had been no evidence introduced that either of the defendants had any knowledge of opposition to donation by the decedent prior to his death. In addition, there was no evidence that anyone was present (i.e., actual relatives) who expressed any opposition to the donation. While the individual who gave consent apparently was not "authorized" to do so, the court held that there was no requirement imposed by the UAGA for the hospital or Eye Bank to investigate the individual's authority to give consent. As in other cases addressing the issue, hospitals and organ procurement agencies are not expected to conduct anything more than the most basic investigation as to the signatory's assertion of his or her relationship to the decedent.

Case #5: Kelly-Nevils v. Detroit Receiving Hospital58

This interesting case considered the immunity provision of the UAGA as adopted in Michigan.59In this case, an unidentified man was admitted to the hospital after having suffered a gunshot wound to the head. The hospital was not provided with any identification information, and the court noted that this was one ofhundreds of unidentified victims admitted to this particular hospital every year. The patient was pronounced brain dead but placed on life support. Later, a "clean-cut, young man appeared at the hospital . . . [and identified] himself as [the decedent's] brother and only living relative." The hospital solicited an organ donation consent from him, although no one attempted to verify the "brother's" identity. Pursuant to this "consent," the decedent's organs and tissue were harvested.

In fact, the decedent had no brother and was survived only by his mother, whom police located three days after the death. She filed suit against the hospital under various theories and the hospital asserted immunity under the "good faith" provision of the UAGA. The court first concluded, in agreement again with the Nicoletta court, that the determination of "good faith" was a matter of law for the court, not an issue of fact for the jury. The court then refused to impose a duty on the hospital to conduct an independent investigation to determine whether an individual who purports to be authorized to consent to organ donation does in fact have that authority. In this case, the "brother" clearly was an imposter (what was the motive?), yet no one ever notified the hospital of any opposition to the organ donation (although the decedent's mother did not, at the time, even know he was dead). The court noted that, to impose any duty of investigation, would frustrate the purpose of the Act since "time is of the essence." The importance of this issue being decided by the court (i.e., as a matter of law) cannot be over-emphasized. This allows the case to be dismissed by summary disposition at an early stage, before trial, and without the perils and uncertainties of leaving the matter to a jury's discretion.

Summary

Organ supply for transplantation lags significantly behind demand, and the situation, unfortunately, will continue to worsen. The number of individuals who die while on organ transplant waiting lists is high and is rising. Demand will continue to increase exponentially as advancing medical research improves transplant outcomes and increasingly sicker patients become candidates. At the same time, we would hope that our public health efforts will be effective, which will, if successful, decrease the supply of donor organs-highway safety, decrease in alcohol use while driving, early treatment of hypertension, decrease in street violence, etc. Although supply will never meet demand, we could come closer since we are currently far from maximizing the use of the potential donor organs available today.

Organ donor cards will be distributed this year with all Federal income tax refunds as the result of a bill signed into law in August 1996.60 Any efforts to increase organ availability are to be applauded; however, given our current organ procurement system, the effectiveness of this approach remains to be seen. We continue to operate under an organ donation system where people may legally donate their organs, to be harvested after their death, yet organs and tissue are not harvested without the consent of the decedent's family. This significant obstacle to organ procurement was noted in the Prefatory Note to the 1987 UAGA, which quoted a 1985 Gallup Poll finding that nearly half of the people who were "very likely" to donate their organs had never told their families of their desire.61 This "promise [of] the gift of life to another human being," as Representative Camp called it, too often remains a promise unfulfilled.60

It is incumbent on all ED physicians to be aware of organ and tissue donation laws and policies and see to it that the families of all potential donors have the opportunity to donate the "gift of life." It is never easy talking to the family at the height of their grief, but we must all take the time to compassionately offer the relatives the opportunity to donate the organs and tissue of their loved one. Concerns of liability related to involvement in organ procurement should never be an issue in that all states have adopted a version of the UAGA, which confers immunity so long as the individual acts in "good faith," a term that is interpreted, as the above cases illustrated extremely liberally.

References

1. United Network for Organ Sharing, U.S. Waiting List Statistics (August 7, 1996).

2. United Network for Organ Sharing, Facts and Statistics (January 13, 1997).

3. The Gallup Organization, Inc., The American Public's Attitudes Toward Organ Donation and Transplantation. § I tbl. 1 (1993).

4. Sheldon F. Kurtz and Michael J. Saks, The Transplant Paradox: Overwhelming Public Support for Organ Donation vs. Under-Supply of Organs: The Iowa Organ Procurement Study, 21 J. Corp. L. 767 (1996).

5. Id. at 768.

6. Juliana S. Moore, Comment, The Gift of Life: New Laws, Old Dilemmas, and the Future of Organ Procurement, 21 Akron Law Review 443, at 460 (1988).

7. The English common law was adopted by American courts (incorporation).

8. Georgia Lions Eye Bank, Inc, et al. v. Lavant, 335 S.E.2d 127,128 (quoting 2 W. Blackstone, Commentaries 429 (T. Cooley, ed. 1899)).

9. 22A Am Jur 2d §2.

10. 22A Am Jur 2d §3.

11. Uniform Anatomical Gift Act (1968) [hereinafter 1968 Act].

12. The best example is the universal adoption of the Uniform Commercial Code (UCC), which allows reliability in business transactions across state lines.

13. 1968 Act, at Refs. 3.

14. Moore, supra note 8, at 444 (quoting Kramer, The Professional's Role in Helping the Client and the Family Deal with Death, 1986 N.Y.St.B.J.22).

15. Daphne D. Sipes, Legislative Update on the State Adoption of the 1987 Revision to the Uniform Anatomical Gift Act of 1968, 4 BYU J Pul L 395 (1990).

16. 1968 Act Refs. 3.

17. Moore, supra note 8, at 445.

18. 1968 Act § 2.

19. 1968 Act §4.

20. Id. Note: this was drafted prior to the widespread availability of fax machines.

21. 1968 Act §6.

22. 1968 Act §7.

23. See generally Prottas, The Rules for Asking and Answering: The Role of Law in Organ Donation, 63 U.Det.L.Rev 183 (1985).

24. Evans Overcase, et al. Problems in the Identification of Potential Organ Donors. JAMA 1984;351:1559;1561.

25. Moore, supra note 8, at 447.

26. Wayne L. Anderson and Janolyn D. Copeland. Legal Intricacies of Organ Transplantation: Regulations and Liability, J Mo B 1994;50:139;141.

27. Uniform Anatomical Gift Act (1987) [hereinafter 1987 Act].

28. Kurtz, supra note 6, at 775.

29. 1987 Act §2(h).

30. Sipes, supra note 18, at 404.

31. 1987 Act §4.

32. 1987 Act §5.

33. 1987 Act §9.

34. See comment to 1987 Act §9.

35. National Organ Transplant of 1984, 42 U.S.C. § 274e.

36. Sipes, supra note 18, at 426.

37. Id. at 433.

38. Uniform Determination of Death Act (1980).

39. MCLA 333.1033 §3(1).

40. See e.g. MCLA 333.10202.

41. Sipes, supra note 18, at l.

42. Supra, note 47.

43. Kurtz, supra note 6, at 775.

44. 42 U.S.C.A. § 1320b-8(a)(1)(A) (1996 Supp.).

45. Moore, supra note 8, at 464.

46. Kurtz, supra note 6, at 778.

47. U.S. Const. Amend. V.

48. Kurtz, supra note 6, at 791 n.6.

49. See e.g. Wolfgang Holzgreve, et al. Kidney transplantation from anencephalic donors. N Engl J Med 1987;316:1969.

50. 519 N.Y.S.2d 928 (1987).

51. 519 N.Y.S.2d 928, 930 (quoting Black's Law Dictionary 623 [5th ed 1979]).

52. 335 S.E.2d 127 (Ga. 1985).

53. 335 S.E.2d 127, 128.

54. 335 S.E.2d 127, 129 (quoting Abel v. State, 13 S.E.2d 507 [1941]).

55. 335 S.E.2d 127, 128.

56. Case No. CV 528814.

57. 1990 WL 121138 (Tenn.App.), not reported in S.W.2d.

58. 526 N.W.2d 15 (Mich App).

59. MCL 333.19191 et seq.

60. New York Times, February 2, 1997, at 13.

61. Report of the Task Force on Organ Transplantation pursuant to the 1984 National Organ Transplant Act -P.L. 98-507-"Organ Transplantation: Issues and Recommendations" (April 1986).


Physician CME Questions

In regards to the Uniform Anatomical Gift Acts of 1968 and 1987, which of the following is true?

a. The Acts provide for individuals over the age of 16 to donate their organs nd tissue.

b. The Acts allow a written document to serve as a valid donation, so long as it is witnessed by one other person.

c. The Acts provide that donations made by individuals are irrevocable.

d. The Acts provide for limitation of liability, so long as persons act in "good faith."

Under the Uniform Determination of Death Act, an individual is dead if:

a. The individual has sustained irreversible cessation of circulatory and respiratory functions.

b. The individual has sustained irreversible cessation of all functions of the entire brain, including the brainstem.

c. Both a and b.

d. None of the above.

The National Organ Transplant Act:

a. allows for the sale of organs if absolutely necessary for an individual's survival.

b. provides for a national organ procurement and transplant network.

c. is the federal version of the Uniform Anatomical Gift Act.

d. requires hospitals to request organ donation when a patient has died.

Which of the following statements is false?

a. Organ and tissue supply is now approaching demand.

b. Current laws provide substantial limitation of liability to individuals involved in the organ and tissue donation process.

c. The most common organ transplanted currently is the kidney.

d. A significant number of individuals die while awaiting organ transplantation.