Appeals Court Rules Organ Transplant Group Immune From Suit, But Not Other Defendants

ST. LOUIS (AP) -- A lawsuit against a hospital and nurse over donation of body parts taken from a man who died of a heart attack can proceed to trial, but a nonprofit transplant procurement group gets immunity under the Uniform Anatomical Gift Act, an appeals court has ruled.

The case, first reported in Missouri Lawyers Weekly, involved a dispute over what was said and understood after Frank Schembre, 57, of St. Louis, died in 1998 at Jefferson Memorial Hospital.

In the ruling Tuesday, the Missouri Court of Appeals' Eastern District overturned part of the decision by Jefferson County Circuit Judge Gary P. Kramer. He found that the anatomical gift act gave immunity to anyone acting with "good faith" and "without negligence" in harvesting organs for donation, and that all three defendants met the requirements.

The appeals court affirmed Kramer's summary judgment for the Mid-America Transplant Association, but reversed on the other two defendants, Jefferson Memorial and one of its nurses, Christopher Guelbert.

The court found that the transplant group relied on a consent form that appeared valid and that it followed all standard protocols when taken bone, tissue and corneas after Schembre's death in the hospital emergency room. But it said there was a genuine issue of material fact as to whether the hospital and its nurse acted without negligence in obtaining consent from Schembre's family.

According to the court record, Guelbert approached Thelma Schembre and two of her adult children and asked if they'd be willing to donate the dead man's eyes, bone or tissue. The family initially declined, but later agreed to donate corneas and leg bone. A release form signed by Mrs. Schembre had no restrictions.

Mid-America Transplant Services arranged for the taking of both eyes and of the lower leg bones. The family later claimed the consent was only to the taking of corneas, not the entire eyeballs, and to only 2 to 4 inches of bone. Mrs. Schembre and her son said that a female nurse who discussed the matter with them appeared to be writing on a clipboard and that they thought she was noting on the consent form the limitations that they wanted.

Guelbert testified that he told the family the entire eyeball would be removed to harvest the cornea, and that the long bones of the leg would be removed if they chose to donate bone. He said he would have indicated any limitations on the consent form.

Guelbert said he read the consent form to Mrs. Schembre, who said that because she was distraught over her husband's death, she did not read it before signing it.

After the body was released to a funeral home, the family learned that the eyes and lower leg bones had been removed, and they later filed the lawsuit.

The appeals court found that Mid-America Transplant acted without negligence and with good faith in procuring the body parts, and therefore was immune to the claims. But it concluded that there was a definite factual dispute about representations made to the family prior to signing of the consent form.

"In such a case, it is not this tribunal's duty to determine the credibility of the witnesses or resolve these factual issues," the court said in the opinion written by Judge George W. Draper III. "The duty is for the trier of fact."

Copyright © 2003 News Tribune Co.

Copyright © 2003 Associated Press.

This article posted August 16, 2003.

Addendum

I received the following today in an email from Chris Guelbert:

Just an update on the Schembre Case posted on your website: Went before a jury by trial in April of 2006. The hospital and nurse Guelbert were found innocent by a vote of 9-3. The plaintiffs filed a petition for retrial but lost. Have now filed for an appeal with the Missouri Eastern Appeals Court to be heard in sometime of 2007.

Chris Guelbert RN, BSN