Organ Harvesting Lawsuit: Potential Serious Breach of Organ Procurement Rules

Doctors and a San Luis Obispo hospital are being accused in a lawsuit of mistreating Reuben Navarro, a disabled dying patient toward the end that he would die sooner rather than later and that his organs could then be be procured. (Click here for PDF of Complaint.) Based on what has either been admitted or determined, there certainly appear to be some serious irregularities in this case, the facts about which definitely need to be investigated fully. These include denied allegations that the transplant surgeon made the decision to remove a respirator—which as discussed below, would be a real no-no—that Reuben’s mother was told a lie that the respirator “had” to be turned off after five days in order to pressure her into consenting to organ harvesting, the injection of twenty-times the usual amounts of morphine when the patient was taken off a respirator but didn’t die, and perhaps worst of all, that when Reuben didn’t die, he was neglected for 9 hours without life support being reattached.

We have to be careful not to jump to conclusions, since allegations made are not facts proven. But these charges are very serious, which, if true, could amount to criminal as well as civil wrongdoing.

I am posting about this case not to prejudge it but to discuss the often misunderstood organ procurement policy that is supposed to be followed when procuring organs from the bodies of dead patients who are not, to use the vernacular, brain dead. Known in the transplant profession as “non heart beating cadaver donors,” patients who die from cardiac arrest can have their organs procured for transplantation under the terms of what is sometimes called the “Pittsburgh Protocol.” Space does not permit a full detailed listing of every step in this process, but here are the key points:

1. The medical teams and organ procurement teams are to be kept strictly apart so that there is a wall of separation between medical decision-making for the patient, including whether and when to terminate life-sustaining treatment, and the decision to donate organs and organ procurement.
2. If consent to procure is given, the family says their goodbyes and the patient is wheeled into the operating theater at the agreed upon time. Life support is removed. Proper palliative measures are permitted to prevent distress. If the patient goes into cardiac arrest and the heart stops, the transplant team waits to ensure that the arrest is irreversible. This time can range from 2 minutes (too short in my view) to five minutes (better).
3. If the patient does not experience cardiac arrest in 30 minutes (as in this case), life support is supposed to be reattached, and the patient returned to the care of his treating team. The patient is never again to be a candidate for organ procurement.

With these points in mind, we can see the serious nature of the lawsuit’s allegations. On a broader scale, the time is long since nigh for national standards for organ procurement to be established with very clear and continuing training to ensure compliance. As it is, there is a hodge-podge, leading, perhaps, to confusion. If the people’s confidence in transplant medicine—always thin—is to be maintained, this is a matter of great and growing urgency.

One last point: This case involves matters of such profound public import that no judge should permit the parties to enter into a “confidential settlement.” Confidential settlements usually involve money changing hands in return for strict silence, which impedes the proper workings of the tort system, by for example, preventing unsafe products or serious abuses of law from becoming publicly known. For more on the wrongness of confidential settlements, see No Contest: Corporate Lawyers and the Perversion of Justice in America, which I coauthored some years ago with Ralph Nader.