A Kidney Is Given Away, and Patient Can’t Sue To Get It Back, Court Says

A sick man who was scheduled to receive the kidneys of a longtime friend cannot sue over a donor network’s decision to give one of the kidneys to a stranger, the state’s highest court said yesterday in a decision that extends significant legal protection to New York’s Organ Donor Network.The sick man died in June after waiting seven years for a kidney he could use. The ruling is a significant step in determining who owns, or, in this case, doesn’t own donated organs when they are in limbo between donor and recipient. To decide this novel case, the Court of Appeals drew on the wealth of centuries-old common law regarding grave robbery and unauthorized autopsies.The case decided yesterday involves two childhood friends from the Bronx. When one of them, Peter Lucia, died of a stroke on Long Island in 2002, his widow donated his kidneys to the other, Robert Colavito, who was ill with renal disease in Florida. One kidney made it to Colavito, but a doctor found that it was damaged, according to court documents. When Colavito asked for the second kidney, he was told it had already been transplanted into another person.Colavito sued the New York Organ Donor Network, which arranged for Lucia’s kidneys to be harvested. He demanded $60 million, claiming that he had a right to the second kidney. When he died this year, his wife continued the lawsuit.The decision yesterday stated Colavito did not have ownership of the second kidney. The ruling will be reviewed by a federal appellate court, the 2nd Circuit Court of Appeals in Manhattan, which had asked the state court for advice on what New York law had to say about the case. In a decision earlier this year, the 2nd Circuit wrote that plaintiffs such as Colavito are not creating a “legal fiction” but have real legal claims based on the “loss of a functioning organ.”If the 2nd Circuit accepts the Court of Appeals’s finding the lawsuit will be thrown out.For the New York Organ Donor Network, yesterday’s ruling is a significant victory.Had the court ruled otherwise, an attorney for the group, Richard Lerner, said, donor network workers would “have to bring their lawyer with them, a stenographer, a tape recorder” when they went to hospitals to counsel relatives of a dead person about organ donation.“I don’t think the Court of Appeals was ready to demand that,” Mr. Lerner said.Incompatibilities that neither Colavito nor Lucia noticed while friends may keep the door open to similar lawsuits. Even had Colavito received the second kidney, his body would have rejected it, according to court records.In deciding that Colavito did not have property rights to the second kidney, the Court of Appeals weighed heavily on the fact that the kidney had no medical value to Colavito. The court did not indicate how it would have ruled had Colavito been able to use the kidney.“We need not identify or forecast the circumstances in which someone may conceivably have actionable rights in the body or organ of a deceased person,” Judge Albert Rosenblatt wrote in a decision signed by the other six judges on the court.Still, as a starting point, the decision suggests that in New York donated organs are not treated legally as property that can be transferred by contract.That finding, the court notes, is consistent with a common law tradition that family members cannot sue over the corpses of family members. But at times in the decision, the court seems noncommittal about just how relevant such legal traditions are in an age when organ harvesting can directly save lives.“When discussing the body parts of deceased person, it is unlikely that our forbears had in mind that human organs might be transplanted to extend life or improve health,” the decision says.An attorney for Colavito decried the decision.“If somebody takes the kidney that somebody gave you, you should have recourse,” the attorney, Denise Winter Luparello, said. “Somebody’s walking away with your kidney, after all.Ms. Luparello said that the ruling also weakens the authority of the donors’ wishes.“I see horrific consequences from this,” Ms. Luparello said. “It means if you make a directed donation and sign the consent form, they’re under no obligation to give the organ to the person you consent to.”The widow of Lucia, the organ donor, also has a suit against the organ donor network, Ms. Luparello’s said.The facts surrounding the second kidney are less clear.When Colavito was told that the second kidney had already been transplanted, it actually was at New York University and would not be used for three more days, Ms. Luparello said. The widow, Debra Lucia, maintains that both of her husband’s kidneys should have been sent to Colavito, according to court documents.

A Kidney Is Given Away, and Patient Can’t Sue To Get It Back, Court Says

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