Legal Review & Commentary
Transplant of diseased heart results in $2.35 million verdict
By Jonathan D. Rubin, Esq.
Partner
Kaufman Borgeest & Ryan
New York, NY
Aisling Jumper, Esq.
Associate
Kaufman Borgeest & Ryan
New York, NY
Leilani Kicklighter, RN, ARM, MBA, CHSP, CPHRM, LHRM
The Kicklighter Group
Tamarac, FL
News: On Nov. 26, 2006, a 49-year-old man from Howard Beach, NY, underwent a heart transplant at a New York City hospital. Less than a week later, on Dec. 2, 2006, the patient’s new heart suffered a massive hemorrhage. He died later that day. In 2008, the patient’s family brought suit against the hospital and alleged that the hospital transplanted a diseased heart. On June 6, 2012, the jury returned a verdict of $2.35 million, which will be reduced to $2 million pursuant to a pre-trial agreement among the parties.
Background: The patient, a 49-year-old airlines systems operation manager from Howard Beach, suffered from a weak heart for several years prior to the heart transplant at issue in this case. In March 2006, the patient was placed on the heart transplant list. In November 2006, a suitable donor was found in Florida, and one of the hospital’s transplant surgeons flew down to examine the heart and assess the medical history of the donor. The heart was deemed suitable, flown back to New York, and the patient underwent a heart transplant on Nov. 26, 2006.
The lead transplant surgeon at the recipient hospital directs the hospital’s heart transplant program and trains the transplant doctors. The doctors who retrieve the hearts are young doctors, in their third or fourth year of residency, and might have witnessed four or five transplants before examining a donor heart on their own. There are protocols for each member of the transplant team to follow when orchestrating a heart transplant operation.
Less than one week later, on Dec. 2, 2006, the donor heart hemorrhaged. The patient experienced severe and agonizing pain. He died later that day due to the massive hemorrhage.
Plaintiffs, the patient’s family, commenced a lawsuit against the hospital in 2008 in New York State court. The plaintiffs alleged that the examination of the heart by the hospital’s surgeon in Florida should have revealed that the heart was diseased, and the heart should never have been transplanted into the patient. Plaintiffs also alleged that the hospital failed to turn over any documents that would show whether the doctors knew that the heart was badly flawed or if crucial tests on the organ were ever completed before it was harvested. Furthermore, plaintiffs asserted that the surgeon at the hospital failed to show evidence that the donor heart was thoroughly checked for any defects before transplantation. Plaintiffs contend that pursuant to hospital protocols, the surgeon must examine the heart prior to harvesting, including palpation of the coronary arteries for evidence of disease. An autopsy done later on the donor heart showed that the heart had vascular disease, and the plaintiffs claim the surgeon should have detected this condition before transplanting the heart.
In its defense, the hospital asserted that it had reviewed an angiogram on the donor heart performed by the donor hospital. The hospital maintained that it provided the required standard of care. However, the hospital was unable to produce any record of the procedure. During the trial, plaintiffs filed a motion in limine regarding the missing documentation. In the briefs filed in connection with the motion in limine, it was revealed that the hospital’s surgeon on the harvest team typically would sign an operative record of the procurement that is a standardized form, and those forms are directed back to the hospital. According to testimony from the surgeon, it was their routine to finish all of the documents as they were leaving the operating room at the donor hospital. The hospital asserted that it had produced the requested document.
On June 6, 2012, the jury returned a verdict of $2.35 million. The verdict will be reduced to $2 million, payable by the hospital, pursuant to a pre-trial highlow agreement entered into by the parties, whereby the patient’s family was guaranteed to receive a minimum of $200,000 if there was a verdict for the defense, and a maximum of $2 million if there was a verdict for the plaintiffs.
What this means to you: The Uniform Anatomical Gift Act of 1987 (updated from 1968), the National Organ Transplant Act of 1984, The Patient Self Determination Act of 1991 and various state laws all govern the donation, harvesting, and transplantation of human organs. These laws, and others, are the basis of state based Organ Procurement Organizations (OPO) and Organ Procurement and Transplantation Networks (OPTN.) Risk managers should be familiar with the essence of these laws, the Patient Self-Determination Act of 1991, and their respective organization’s policy and procedures governing identification, contact with the OPO and OPTN in their area, and harvesting of donated organs. Clinical supervisors on all shifts should be thoroughly oriented to these policies and procedures to support appropriate response to and support for the process of assessing the prospective donor and contact to the OPTN.
Individuals who have indicated they wish to be organ donors are to be identified upon admission and their record so marked. Those patients who cannot convey their desires might have registered as a donor through their driver’s license. Staff members should be educated to ask family members to review the person’s driver’s license or, when family members are not available, review the patient’s driver’s license to verify the donation wishes.
In the instances when an individual has made a decision to be an organ donor, is in a condition determined to be irreversible, and death is expected, the OPTN should be immediately put on notice. The OPTN representatives and, depending on the medical center’s policies and procedures, the patient’s physician/surgeon will approach the next of kin to discuss the harvesting and donor process. Usually, when patient is pronounced dead, the OPTN assumes responsibility for the donor and takes over the life support and evaluation of the patient’s medical history and recent condition, care, and tests to assess suitability for transplant. A part of this process is to determine the blood type, perform other tests, and post the organs and test information on the transplant network.
When multiple organs are harvested, they might be used in recipients in various locations throughout the country. In such situations, harvesting surgical teams from these multiple locations will be on site to retrieve their organ to take back to their home medical center. The donor hospital needs to be able to manage and handle all this activity on all levels.
This is an interesting case and raises many questions, including this one: Since the patient already had been pronounced dead, are those evaluations and test results in the OPTN’s records as opposed to the hospitals? Were the records requested only from the Florida hospital or also from the OPTN?
This scenario also contains information stating that a heart angiogram was done at the donor Florida hospital, but the results were unavailable/lost. We do not know if the angiogram was conducted by the patient’s physician or by the OPTN after being pronounced dead. One would surmise that if the test was conducted by the patient’s physician and the results showed any abnormality, the patient would not have been considered a candidate for a heart donor.
Furthermore, a peer review of the process of assignment of residents to the transplant harvesting team without assignment of an attending should be undertaken by the medical center.
Reference
New York State Supreme Court, Queens Civil Supreme, Index No. 027150/2008.
News: On Nov. 26, 2006, a 49-year-old man from Howard Beach, NY, underwent a heart transplant at a New York City hospital. Less than a week later, on Dec. 2, 2006, the patients new heart suffered a massive hemorrhage.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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