There’s a potentially explosive lawsuit that’s gotten limited coverage so far. As near as I can tell, the first story on it was published in the New York Post on September 26 of this year. Here’s an excerpt from the news story in the Post:
The New York Organ Donor Network pressured hospital staffers to declare patients brain dead so their body parts could be harvested — and even hired “coaches” to train staffers how to be more persuasive, a bombshell lawsuit charged yesterday.
The federally funded nonprofit used a “quota” system, and leaned heavily on the next of kin to sign consent forms when patients were not registered as organ donors, the suit charged.
“They’re playing God,” said plaintiff Patrick McMahon, 50, an Air Force combat veteran and nurse practitioner who claims he was fired as a transplant coordinator after just four months for protesting the practice.
The suit, filed in Manhattan Supreme Court, cited four examples of improper organ harvesting.
In September 2011, a 19-year-old man injured in a car wreck was admitted to Nassau University Medical Center. He was still trying to breathe and showed signs of brain activity, the suit charged.
But doctors declared him brain dead under pressure from donor-network officials, including Director Michael Goldstein, who allegedly said during a conference call: “This kid is dead, you got that?” the suit charged.
The patient’s family consented to have the organs harvested.
“I have been in Desert Storm, Iraq and Afghanistan in combat. I worked on massive brain injuries, trauma, gunshot wounds, IEDs. I have seen worse cases than this and the victims recover,” McMahon told The Post.
This could just be a case of a ‘disgruntled’ ex-employee leveling charges against the Organ Donor Network as a way to get even – certainly the charges might seem pretty incredible to most of the public who probably have a hard time believing that scenes such as the ones McMahon alleges could occur in major hospitals in this country.
However, to people who are more familiar with some of the controversies surrounding organ donations and determination of death, these charges don’t seem that wild or bizarre – at all.
Take the issue of brain death – as we’ve discussed on this blog, there is high variability between hospitals regarding just what protocols are used to make a determination of brain death. In that post we shared this quote from a 2010 article in USA Today from James Bernat, a leading expert on brain death, referring to a 2008 study:
Dr. James Bernat, a professor of neurology and medicine at Dartmouth Medical School, said the new guidelines will help to remove some of the variability in how doctors determine brain death.
“The 2008 study disclosed rather surprising and disturbing variations in determining brain death, and in some cases there were practices that were just plain wrong,” Bernat said.
The main risk is that a patient will be declared brain dead who really isn’t, Bernat said.
“The authors of this (new) study are experts in their field and have done an evidence-based, authoritative review,” Bernat said. “They are saying, ‘This is the way it ought to be done.’ The goal is to improve the uniformity and the quality of neurological practice.”
As Bernat delicately stated, the variability in practice creates a risk that individuals will erroneously be judged to be brain dead. The trouble with the new guidelines is that, as before, hospitals are not required to adhere to those guidelines, but are free to set their own standards.
And the practices of Organ Donation Advocates in hospitals? There’s more than a few whispers of concern about that as well. We’ve done a fair amount of coverage on the topic, but if you only want to read one thing, check out the link and quote below from a prior blog post here:
The March 2012 issue of Virtual Mentor, American Medical Association Journal of Ethics featured an article by Dr. Fins titled Severe Brain Injury and Organ Solicitation: A Call for Temperance. Unlike many journal articles, this one is freely accessible. Here’s the intro:
Several years ago I resigned from a board position with the local organ procurement organization (OPO) over the status of organ retrieval from those with severe brain injury. I resigned with a heavy heart but a wary brain because I am a supporter of organ transplantation. Why else would I have agreed to join the board of an OPO? It was pro bono service in the pursuit of a good—the giving of life to patients in dire need of replacement organs in the face of end-stage disease. But there was another set of goods, emerging goods, for a different constituency—some patients with disorders of consciousness—that seemed in opposition to some of the policies pursued by the mainstream organ donation community. I was particularly concerned about patients who were in the minimally conscious state (MCS), a brain state just above the vegetative state.
Fins spends some time giving an overview of the distinctions between coma, vegetative state, and minimally conscious state. He also gives what are regarded as the standards for recovery times. You can find some of that info by searching this site or read Fins’ article yourself. In the next section, Fins gives a description of some of the issues that trouble him in blunt language:
Federal regulations require that Organ Procurement Organizations (OPOs) be notified of the impending death of potential donors [10]. The timing of this notification can be self-evident: the patient on life support and vasopressor agents that maintain the blood pressure artificially, whose end is inevitable, no matter the intervention. But sometimes, the end is contingent upon decisions about the withholding or withdrawal of life support.
Case in point: what to do about those who have sustained a severe brain injury. Totally dependent upon ventilator support for at least airway protection if not ventilation as well, they can quickly become the imminently dying if a decision is made to withdraw the ventilator. And once such decisions are contemplated, regulations would have it that the OPO be notified about the possibility of what is commonly and euphemistically termed a potential organ harvest.
My problem as an OPO board member was that, too often, patients like these were viewed as if they were destined or compelled to die. They were seen as organ donors even before their organs had outlasted a viable body—and brain. As an ethics consultant at an academic medical center, I had seen OPO representatives hover in an ICU, waiting to sweep in—as some intensivists have described it to me—and collect what they viewed as rightly theirs—organs that would have a salutary effect on another human being.
I use the word “hover” deliberately, if a bit provocatively, because that is how families of many brain injury patients viewed it. I know this from interviews with more than 40 families, each with a member who had a disorder of consciousness, who came to Weill Cornell Medical College for enrollment in neuroimaging and EEG studies designed to elucidate mechanisms of recovery. While they were here, we conducted extensive interviews with patients’ surrogates about their experiences with the care system as they made their journey from acute injury on through rehabilitation and chronic care [11].
One of the most powerful scenes, often repeated, occurs early in the course of care, when patients are still in the ICU: surrogates are approached for organ donation. After the patients survive and recover to varying degrees of function, these families still resent what is often described as the predatory behavior of OPO representatives. Many families report zealous attempts at procurement and a near-certainty about their loved one’s prognosis: death was inevitable, ventilators should be withdrawn, and organs should be redirected for some greater good. But with valuable hindsight, families later ask, how did they know? And how could they have been so wrong, both medically and perhaps ethically?
Fins ends with his call – or plea – for temperance. I’ll leave it to readers to follow the link to read his recommendations. The excerpts here should be more than enough to show that the writing is eminently readable.
So, to make a long story short, the allegations in Patrick McMahon’s lawsuit are all-too plausible. You can read the rest of the NY Post article here. Additional coverage at the Huffington Post and Staten Island Advance.