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A proposed model law that would make it easier for hospitals to get approval to remove organs from dying patients is raising legal concerns among attorneys. Drawing particular criticism is a plan in the law to widen the pool of individuals authorized to give consent to include not just parents and spouses, but grandchildren, special caretakers and health care power of attorney. The National Conference of Commissioners on Uniform State Laws (NCCUSL) has proposed the change in its effort to revise the Uniform Anatomical Gift Act, a model law that sets national standards for organ donations and has become law in all 50 states. The group hopes that the proposed changes, which are expected to be approved on July 13 at the group’s annual conference in South Carolina, will be adopted by state legislatures and eventually lead to more organ gifts. The commissioners believe that expanding the number of people allowed to give consent for organ donations will help the transplant community get more organs. But some attorneys warn that giving consent powers to too many people could trigger litigation, particularly if there are conflicts among family members who disagree about whether a loved one’s organs should have been donated. “What we have would be that family members could try to sue each other, they could try to sue the hospital, the doctors, the organ-procurement centers-it’s really quite endless,” said Michele Goodwin, director of the Health Law Institute at DePaul University College of Law in Chicago. “And we’ve already seen litigation in this area. Now there could be more of it.” Goodwin noted that in recent years, consent issues involving organ removals have been raised in lawsuits in Georgia, Utah, California, Ohio and Washington, where plaintiffs have claimed organs were removed without full consent, or without any consent at all. Currently, a dozen similar suits are pending in Maine, and three more in Washington against a Maryland research facility accused of harvesting patients’ brains without full consent. The most recent was filed last month. Martin v. Stanley Medical Research Institute, No. CV-06-182 (York Co., Maine, Super. Ct.). Meanwhile, proponents of easing the organ-donor consent process maintain that helping doctors get permission more efficiently will help produce more organs for transplants and research. “The fact is that most people don’t do donor cards, and so inevitably the transplant folks are looking to somebody for permission to do this . . . and if you can’t figure out who to get permission from, then an organ may be lost,” said John McCabe, legislative director for the NCCUSL. Under the current Uniform Anatomical Gift Act, six groups are eligible to give consent for organ donation: spouses, adult children, parents, siblings, grandparents and guardians. The current proposal calls for adding a health care power of attorney, which would be at the top of the list; grandchildren; an adult who who exhibited special care and concern for the decedent; and any other person having authority to dispose of the patient’s body. Another proposal is to require that coroners and medical examiners allow organs to be removed from crime victims on respirators when requested by transplant agencies. Law too lax? However, some attorneys, such as Michael Duddy of Kelly, Remmel & Zimmerman in Portland, Maine, who defended Maine’s former funeral inspector in a brain-harvesting lawsuit, believe that laws regulating organ removal are already too lax. “The whole business of consent is underregulated and therefore susceptible to abuse,” said Duddy. “All [the proposal] does is make it more susceptible to claims from plaintiffs, such as were made in Maine . . . .You’ve got to regulate it more and make it more difficult to get consent.” “And then make sure you’ve got the correct scope of consent,” he added. Duddy represented Matthew Cyr, Maine’s former funeral inspector and a contractor for Stanley Medical Research Institute in Bethesda, Md., who was accused of obtaining brains from cadavers without full consent. Some plaintiffs claim they gave no consent at all. In 2004, Duddy settled one of those claims against Cyr for an undisclosed amount, arguing that there was evidence that the scope of the consent was appropriate and respected. That case involved a couple who claimed that their son’s entire brain was removed after his death when they had only authorized a tissue sample. Gagnon v. Stanley, No. 04-233 (Cumberland Co., Maine, Super. Ct.). Byrne Decker of Pierce Atwood in Portland, Maine, who is representing Stanley Medical Research Institute in the Maine litigation, declined to comment.

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