SJC rules in favor of organ bank in Salem case

By Denise Lavoie, AP Legal Affairs Writer

March 15, 2006

BOSTON -- The parents of a 16-year-old Beverly boy who was killed in a golf cart accident have lost their bid to sue organ banks after they unsuccessfully attempted to donate some of their son's remains.

The state Supreme Judicial Court on Wednesday upheld a lower court's ruling dismissing a negligence lawsuit filed by Richard and Margaret Carey. The Careys' son, Adam, was killed in September of 2000 when he lost control of the golf cart he was driving at Kernwood Country Club in Salem and slammed into a deck.

The parents tried to donate their son's skin, blood vessels and eyes to the New England Organ Bank and the New England Eye & Tissue Bank. The Careys were unsuccessful in part because saline solution used during Adam's medical treatment made his tissues unsuitable for transplantation.

The parents claimed in their lawsuit that the organ banks had caused them emotional distress through what they said were a series of mistakes in the handling of their son's remains. The court did not make any findings on whether mistakes were made.

The Careys also said the New England Organ Bank failed to make a required audio recording of the conversation in which they gave consent for the donations.

The high court found that although an employee of the organ bank had failed to tape-record the father's consent, the organ bank acted in good faith and should be immune from liability.

Spokesman Sean Fitzpatrick said in a written statement that the organ bank was pleased with the ruling. Fitzpatrick said the decision recognizes that, "the 'good faith' provision limiting liability of those recovering lifesaving and life-enhancing gifts is important and necessary."

Roy Gelineau and Anthony Kline, attorneys for the Careys, did not immediately return calls seeking comment.

In its ruling, the SJC describes the confusion that characterized the Careys' attempt to donate some of their son's tissues, beginning with a conversation they had with an employee of the New England Organ Bank about two hours after their son died.

Following the organ bank's procedure at the time, the employee read a consent form over the phone to Richard Carey.

Over the next few days, the organ bank noted that some harvested tissues unsuitable for transplantation, and the tissues were discarded. Despite that, the organ bank sent the Careys a letter and reported erroneously they had been successful. The Eye & Tissue Bank also wrote the Careys to say that their son's right cornea had been transplanted.

The Careys said they should never have been told that their son's tissue and organs were suitable for donation.

Minutes before the organ bank employee completed the consent form with Richard Carey, a nurse told the employee that Adam had received substantial infusions of saline during emergency treatment.

The Careys said in their lawsuit that the employee should have known that Adam's tissues might not be suitable transplantation by federal standards because saline can significantly affect tests for infectious diseases.

The Careys claimed that the organ bank's actions violated the Massachusetts version of the Uniform Anatomical Gift Act, a law that governs the donating of organs and tissue.

The court found that the employee who spoke to Richard Carey believed that he needed only to record his responses by writing on the consent form. Another employee listened and signed the form as a witness.

"Although the manner of recording was incorrect, the Organ Bank's interpretation of the statute was not unreasonable," Justice Judith Cowin wrote in the 7-0 ruling.

"In the absence of definitive guidance on the manner of recording, completion of a written form reflecting the responses, with a witness listening and signing the consent form, cannot be deemed a lack of good faith."

Fitzpatrick said the organ bank has put in place several new safeguards, including tape recording all telephone consents and telling donor families that there is no guarantee that the donation will be medically suitable for transplant.

Editor's Note: Denise Lavoie is a Boston-based reporter covering the courts and legal issues. She can be reached at dlavoie(at)ap.org

Copyright © 2006 Associated Press.

This article posted April 2, 2006.