News: A California appeals court has revived a father’s suit alleging a hospital and an organ donor network conspired to harvest his daughter’s organs despite his objections. The father contended the trial court should have considered the full scope of the hospital’s actions, not just the harvesting procedure, when deciding whether the claims could go forward.
In November 2017, the hospital declared the plaintiff’s daughter brain dead due to strangulation injuries. The plaintiff strenuously objected to the withdrawal of life support and harvesting of his daughter’s organs, wanting to preserve any evidence of foul play. The hospital obtained consent from the plaintiff’s ex-wife and withdrew life support. Some of the daughter’s organs were harvested by the donor network, with the assistance of the hospital.
The plaintiff sued the hospital and donor network for intentional infliction of emotional distress. The defendants argued their conduct was not outrageous, nor was it directed at the plaintiff. The trial court agreed, and dismissed the case.
On appeal, the plaintiff argued the trial court erred by failing to evaluate the full range of defendants’ outrageous conduct, which began when the defendants formed a plan to recover his daughter’s organs without obtaining his consent and continued when the defendants effectively ejected him from the hospital when he objected to any organ donation, and concluded with the removal and donation of her organs and tissue without his permission.
The plaintiff contended he and the patient’s mother, as the surviving parents, possessed co-equal rights to determine the disposition of their daughter’s remains. He alleged the defendants were aware he suspected foul play in his daughter’s death and that he did not want her body disturbed before an autopsy was performed. The appeals court reversed the dismissal, ruling the plaintiff sufficiently alleged the defendants intentionally inflicted emotional distress on him. The justices pointed to recorded evidence the hospital intended not to tell the plaintiff about harvesting his daughter’s organs until after it was completed, even though the hospital was well aware that he objected.
Background: On Nov. 17, 2017, the plaintiff’s daughter was admitted to the hospital in a deep coma due to strangulation injuries. The plaintiff believed the injuries were not an accident, and a result of foul play. The hospital staff initially informed the plaintiff his daughter might survive.
Six days later, the medical staff informed the plaintiff his daughter was brain dead. The plaintiff demanded a second opinion. However, the medical staff told informed him a second opinion had been obtained, and he would not be allowed to obtain his own second opinion.
Representatives of an organ donation network approached the patient’s mother about donating the patient’s organs and tissues after death. The plaintiff, who wanted to preserve evidence of possible foul play, objected to withdrawing life support and harvesting organs or tissue, and refused to consent to donation. The plaintiff requested an autopsy; he believed harvesting the patient’s organs would cause inaccurate results. Additionally, the patient had never signed any instructions regarding the donation of her organs or tissues after death.
The patient’s medical records indicated the defendants planned to harvest the patient’s organs without the plaintiff’s consent. They also indicated they would not tell the plaintiff about the organ harvesting until it was completed.
When the plaintiff protested the removal of life support and harvesting of his daughter’s organs, the hospital called security. He was given only three minutes to say goodbye to his daughter and leave the hospital. The hospital withdrew the patient’s life support, and she died Nov. 24, 2017.
The plaintiff filed suit, alleging the hospital and donor network conspired to harvest his daughter’s organs without his consent. The trial court granted the hospital’s motion to dismiss, ruling the hospital’s action of removing the patient’s organs was not directed at the plaintiff, since he was not present when it happened.
On appeal, the appellate court found the trial court had interpreted the law too narrowly, stating the court should consider the defendants’ entire course of conduct toward the plaintiff, not just the organ removal procedure. The justices added these actions were taken toward the plaintiff when he was emotionally vulnerable, and the defendant hospital flagrantly denied the plaintiff access to his daughter before she died. They also found the hospital and donor network’s conduct extreme and outrageous, and believed their actions to be deliberate, intentional, and directed toward the plaintiff. Specifically, the apparent lack of thought or sensitivity toward the plaintiff’s wishes constituted a reckless disregard.
What this means to you: This case shows the standard of review for a plaintiff’s success on a claim of intentional infliction of emotional distress against a hospital.
The cause of action for intentional infliction of emotional distress includes these elements: extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; the plaintiff’s suffering severe or extreme emotional distress; and actual and proximate causation of emotional distress by the defendant’s outrageous conduct.
In this case, the plaintiff contended the defendants’ conduct was more than the harvesting of his daughter’s organs — it also included defendants secretly deciding to recover and donate her organs without obtaining his consent, effectively ejecting him from the hospital when he objected, and proceeding with removing and donating her organs and tissue over his objections. The removal and donation of his daughter’s organs is not the only conduct relevant to a determination of “extreme and outrageous.”
As the patient’s co-parent, the plaintiff possessed statutory rights concerning the disposition of the patient’s remains and the donation of her organs. The plaintiff strenuously attempted to exercise his statutory rights when he became aware of the defendants’ plans to take his daughter off life support and harvest her organs. The plaintiff alleged he made clear to the hospital that he wanted his daughter to remain on life support until an autopsy could be performed, that he did not want any of her organs or body parts removed, and that he did not consent to organ removal.
While deprivation of a statutory right usually is insufficient to be “extreme and outrageous” conduct, the plaintiff alleged the defendants did more than merely deprive him of his statutory rights. The complaint alleged they engaged in such deprivation by barring the plaintiff from being physically present with his daughter as she faced death. The defendants acted over time, despite knowing the plaintiff’s particular vulnerability to such conduct, and over the plaintiff’s protestations about the conduct in question.
The defendants knew the plaintiff was in a dire emotional state but disregarded the bona fide basis of his refusal to donate his daughter’s organs. The continuing course of defendant’s conduct was extreme and outrageous, the appellate court ruled. The justices considered the full scope of defendants’ conduct: the defendants conspiring to harvest the patient’s organs and tissue without the plaintiff’s consent, their ignoring his objections to any organ removal and effectively ejecting him from the hospital, and carrying out their plan of harvesting organs and tissue.
Probate laws usually are clear about the rights of patients and families facing these issues. If the patient is a juvenile, parents are the decision-makers unless a court has determined otherwise. If the patient is an emancipated adult, or at or above the age of consent, unable to make healthcare decisions, and lacking an advance directive, then the spouse, significant other, parents, or other individual with whom the patient lives becomes the decision-maker. Consent from one of these individuals is required for organ donation, unless the patient has indicated on their driver’s license or by some other legal means that they wished to donate their organs. The only time a hospital can make that decision on behalf of the patient is if the patient is unrepresented. In that case, the hospital must create a policy describing this process of consent. A team of uninvolved individuals, including community members, clergy, and the hospital CEO, make the unanimous humanitarian decision to consent on behalf of the patient. In this case, with appropriate representation from parents, donation without their consent is not permitted.
Withdrawing life support from a patient declared brain dead by two physicians following policies meeting licensing and accreditation standards is a different situation. Families, loved ones, spouses, children, other physicians, and friends cannot stop the removal of life support. Most hospitals allow families time to gather and say goodbye, but the hospital is bound by law to remove the patient from life support. A patient whose brain has ceased functioning, except for the brain stem that keeps the heart beating and some respiratory functions working, is, in fact, dead. The only reason to maintain the body on life support is to harvest organs for donation. The pleas from the family that the patient’s death involved foul play would have been up to the coroner’s office. Had the coroner intervened, the office would have mandated an autopsy long before any consideration of organ donation. These are complex issues that keep risk departments constantly seeking opinions from their peers, their in-house counsel, and the courts. But the rules are in place, the policies have been written, and the answers can be found. Involving counsel as soon as such issues appear is strongly advisable.
REFERENCE
- Decided Jan. 31, 2022, in the Court of Appeal of the State of California Fifth Appellate District, Case No. F080109.
This case shows the standard of review for a plaintiff’s success on a claim of intentional infliction of emotional distress against a hospital.
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