An organ transplant is a medical procedure where an individual’s internal organ is transferred to another individual’s body. The individual who is receiving the organ is referred to as the recipient or the donee.
The individual who is giving the organ is referred to as the donor. An organ transplant is performed in situations where the organ of the donee has failed and is presenting health risks to them.
It is common for organ transplants to be performed on certain organs, including the:
- Kidneys;
- Pancreas;
- Heart;
- Lung.
Organ transplants are also commonly used on other body parts and systems, including:
- Bones;
- Bone marrow;
- Blood;
- Corneas;
- Other parts of the skin and eyes.
Organ donations and transplants are commonly classified according to whether a donor is still alive as a deceased donor or as a living donor.
What Are Some Common Legal Issues Involving Organ Transplants?
Organ transplant procedures may be connected with legal issues. These types of procedures are typically complex and may require very long wait times for a recipient to find a match.
Once a match has been found, the procedures for removing the organ and transplanting it may be very complicated. Organ donation issues may include, but are not limited to:
- Failing to perform surgery properly, for example;
- Performing the wrong procedure;
- Performing on the wrong person;
- Failing to remove a surgical implement;
- Malpractice with regards to a pharmacy error;
- Breach of contract between donors and donees;
- Forced donation or organ theft.
Medical malpractice claims may arise related to organ transplants. The majority of medical and surgical procedures will have various side effects.
Hospital or physician liability may also arise if there is a failure to warn the patient of the risks associated with the specific procedure.
What Proof Is Needed for a Transplant Malpractice Claim?
In the context of a medical malpractice claim, professional negligence is negligence that is committed by:
- Doctors;
- Nurses;
- Healthcare providers;
- Hospitals;
- Other institutions.
Professional negligence involves a failure to do something that a reasonably prudent doctor, nurse, medical provider, hospital, or other institution would do. Professional negligence may also arise when one of these parties does something that a similarly situated party would not do under the same circumstances.
Jury instructions that are provided in professional negligence cases ask that the jury consider whether or not the party on trial was negligent. The jury will be instructed to consider all opinion testimony from expert witnesses.
Other types of evidence are also considered, including:
- Professional standards;
- Rules;
- Regulations; and
- Policies and procedures.
The law itself does not determine how a reasonably prudent medical professional or institution would act. The standard of care applies to any type of organ transplant case, which may include:
- Heart;
- Lung;
- Kidneys;
- Liver;
- Pancreas;
- Cornea;
- Other vital organs.
Similar to all medical negligence cases, the elements of negligence are required to be proven by the plaintiff in a transplant case. This includes duty, breach of duty, proximate cause, and damages.
The standard of proof in these cases is by the preponderance of the evidence. This means, in general, that it is more likely than not what occurred.
Can I Sue for Failed Organ Transplant Surgery Even After Signing a Waiver?
Yes, it may be possible for an individual to sue for a failed organ transplant surgery even if they signed a waiver. Waivers can vary greatly, so it is important for an individual to review what they are signing prior to their surgery.
A waiver is a document that indicates that the patient understands they are waiving their right to a claim. Medical waivers are attempts by service providers to avoid legal liability from injured patients.
Medical waivers are often very broad and will try to include all injuries and losses. Simply because an individual signed a waiver does not always mean it will be enforceable.
It is important for patients to be aware that some waivers include allowing physicians or medical clinics to take photos or videos of the medical procedure and use them for marketing purposes. It is common for medical waivers to include language such as:
- I understand the risks and possible complications of the procedure;
- I understand there is a risk of heart attack, stroke, brain damage, or death;
- No representations were made regarding the success of the procedure;
- A complete release and bar to any claims resulting from the procedure;
- This consent, waiver, and release shall be binding upon the patient; and
- Satisfaction cannot be guaranteed.
Waivers in medical cases may involve a release of claims for the risks that are inherent to the medical procedure. For example, in surgical procedures, bleeding may occur during surgery.
Generally, an individual can still sue for medical malpractice liability even if they signed a waiver. Medical negligence will typically not be covered, even though the doctor or institution will likely claim it was.
An individual will likely be required to sign multiple forms before they have any type of medical procedure, and the waiver will be buried in those papers. It is important for an individual to ask any questions they have about any of the forms before signing them.
Determining whether a waiver covers an individual’s injury is a job for a medical malpractice attorney. An attorney can also complete the in-depth investigation and evidence gathering that is necessary for a malpractice case.
It is important to be aware that many medical professionals and institutions will have their own attorneys who draft these waivers in a way that is designed to prevent patients from suing them, even for conduct that may be reasonably considered medical malpractice.
What Are Some Remedies for Organ Transplant Legal Issues?
An organ donation lawsuit often results in a monetary damages award for the plaintiff. This damages award is intended to cover costs such as:
- The cost of the original procedure;
- Additional medical treatment and medication costs;
- Legal fees;
- In certain cases, punitive damages.
It is important to note that some states impose limits on medical malpractice awards. These limits will vary according to the jurisdiction and the type of malpractice claim involved.
Many medical malpractice cases result in malpractice settlements. This means the defendant agrees to compensate the plaintiff a set amount that the parties agree on.
It is always important to have legal representation during any negotiations.
Do I Need a Lawyer for Help With an Organ Transplant Claim?
If you have been injured as a result of an organ transplant surgery, it is essential to consult with a personal injury lawyer. These are major operations that typically involve a great deal of paperwork, and there may be numerous legal issues that arise.
Your lawyer can evaluate your case, determine if any waiver you signed will prevent you from filing a claim, and assist you with filing your case in court. If you are required to appear in court, your lawyer will be there to guide you.
These cases are extremely complex and require complicated evidence and expert testimony to prove damages. In addition, most medical professionals and institutions have lawyers representing them or even on staff.
Having an attorney handle your claim will give you the best chance at success and obtaining compensation for your injuries related to your organ transplant surgery.
