Richard Carey & another v.

New England Organ

Bank & others

FACTS:

Plaintiffs son, Adam Carey was mortally injured

in a vehicle accident. Adam was rushed to the hospital
but died. The plaintiffs agreed to an anatomical
donation and then contacted the Organ Bank. Jorge
Duran, the Organ Banks representative, spoke with
Adam Careys father by telephone to accomplish the
consent form. Moreover, federal regulations in effect at
the time prohibited transplantation of organs and
tissue if so much saline had been infused into the
donor that the resulting dilution of blood would
significantly affect testing for infectious diseases, and
no pre-infusion sample was available for testing.
Before Duran completed the consent form, a nurse at
the hospital reported to Duran that Adam had received
substantial infusions of saline during emergency
treatment, and that no pre-infusion samples of his
blood were available for testing. Consequently, Duran
had sufficient information to determine, had he
performed the necessary calculation, that Adams
tissues would not be suitable for human
transplantation. Instead of telling Adams father that
Adam might be ineligible to be a transplant donor,
Duran completed the consent form. Further, Adams
father made a gift of only Adams skin, blood vessels,
eyes, and certain other tissues for transplant or
therapy. However, Duran indicated in the consent form
that Adams father also donated Adams heart for
valves, brain, or a specific blood vessel. Also, Adams
father disagreed to permitting the use of the tissues
and organs for medical research if not usable for
transplantation or therapy. Nonetheless, Duran wrote
the opposite. Then, the Organ Bank proceeded to
harvest Adams tissues, including the vessel which
Adams father refused to consent. Consequently, the
defendants noted that the tissues were unsuitable for
transplantation and were then discarded, and no
anatomical gifts were used for those purposes of for
medical education. Notwithstanding, the defendants
reported to the plaintiffs that they had successfully
transplanted the tissues. Then, the defendants
reported to the plaintiffs the truth and the latter
requested for the return of the tissues, but the same
were not done since the tissues have already been
discarded.

Lastly, the defendants are organized to promote,

coordinate, and implement the recovery, preservation,
and distribution of organs for charitable purposes.
However, the defendants realized financial benefits
from transactions involving anatomical gifts.

ISSUE:

Whether or not the defendants are provided with

immunity by the good faith provision of the statute

HELD:

Yes. The Court rules that the defendants are

covered by the immunity in accordance with the good
faith provision of the statute. To determine if the acts
of the defendants were covered by the good faith
provision; a two-step analysis is required. First, would
be to assess if the acts were in accordance with the
technical requirements of the statute. Second, if the
acts were not in accordance, but they were
nevertheless in good faith. The statute provides that a
hospital or its designated representative inform the
concerned individuals of their opportunity to donate
gifts for transplantation. The hospital would only be
required to inform, if consent would yield a gift
appropriate for the purpose. The Court held that there
was nothing in the records, which would indicate that
the defendants were the designated representatives of
the hospital within the meaning provided by the
statute. The hospital informed the plaintiffs of their
opportunity, and subsequently referred them to the
Organ Bank. The Court held that the statute placed the
burden on the hospital, and not to the Organ Bank. The
Court further concluded that if the requirements were
to apply to the defendants, there was still nothing in
the statute that explicitly or implicitly prohibited what
happened.

The Court also discussed that the good faith

immunity in the statute is provided for situations
where because of confusion, an organ is removed
without genuine consent. The few mistakes in the
consent form provide no lack of good faith on the part
of the defendants, so the immunity extends to them.