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A man suffering from end-stage renal disease has no claims against the organization that “misdirected” a kidney donated to him by his dying friend, a federal court has ruled. In an issue of first impression, Eastern District of New York Judge Dora Irizarry held that a specified donee of an anatomical gift may not sustain a claim for conversion. She also dismissed claims of fraud and violation of the state’s Public Health Law. Irizarry based her decision primarily on the public policy of discouraging the treatment of organs as property. “Because society accepts the exchange of human body parts only when based on a gift model, courts should be reluctant to recognize a cause of action that contravenes this fundamental public philosophy,” she wrote in Colavito v. New York Organ Donor Network, 03-CV-4187, quoting Perry v. Saint Francis Hosp. & Med. Ctr., 629 NYS 2d 673. Directed donations, such as the one at issue in Colavito, are common for organs and, since the advent of AIDS, blood. “The major danger of the decision is that the donor’s preferences are meaningless,” said the plaintiff’s attorney, solo practitioner Victor M. Serby. “Doctors may purposefully appropriate a kidney and be immune from a lawsuit.” The plaintiff in the present case, Robert Colavito, had lost almost all functioning in his kidneys when his childhood friend, Peter Lucia, suffered a massive intracranial bleed in 2002. The next morning, though Lucia was brain dead, his wife kept him on life support “solely for the purpose of procuring his kidneys” for Colavito, according to Colavito’s complaint. Debra Lucia specifically directed that both kidneys be sent from West Islip’s Good Samaritan Hospital to Miami’s Jackson Memorial Hospital, where nurses prepped Colavito for surgery. Although both kidneys were removed, only one was sent to Colavito’s surgeon, who discovered numerous visible aneurysms and deemed the organ unusable. The surgeon contacted the donor network and was told that physicians at New York University’s Medical Center had already transplanted the second kidney into a woman who is now “doing well,” according to the complaint. Colavito has yet to find a matching kidney and his health continues to deteriorate, according to Serby. Colavito initiated a suit against the New York Organ Donor Network; its director of clinical operation, Robert Hochik; and the organ donation coordinator, Spencer Hertzel. (Mrs. Lucia is pursuing a claim against the hospital and the donor network in Suffolk Supreme Court.) CAUSES OF ACTION The suit set forth three causes of action, conversion, fraud and a violation of New York’s Anatomical Gift Laws, and asked for a total of $120 million in damages. Irizarry granted the defendants’ motion for summary judgment, dismissing the complaint in its entirety. Finding no cases directly on point, she cited numerous decisions that disallowed conversion or contract claims in cases involving corpses. “Death is unique,” she wrote, quoting the 1905 Georgia Supreme Court decision Louisville v. Wilson, 51 SE 24. “It is not surprising that the law relating to this mystery of what death leaves behind cannot be precisely brought within the letter of all the rules regarding corn, lumber and pig iron.” Serby, the attorney for the plaintiff, said that the decision envisioned an overly expansive version of actual public policy. “We don’t want the poor to sell kidneys, nor [them] to go to the highest bidder,” he said. But public policy, he added, “does not preclude remuneration for kidneys that have been stolen from you after the fact.” The judge dismissed the fraud cause of action because Colavito did not demonstrate how his reliance on the defendants’ alleged misrepresentation caused him any harm, as required under New York law, according to the decision. “The sole actions that plaintiff claims to have taken because of the alleged misrepresentations are going to the hospital and preparing for surgery,” Irizarry wrote. The final cause of action, premised on the state’s Public Health Law, failed because of a lack of standing, Irizarry ruled. “[T]here is no indication that the lawmakers intended donees to have standing under” the law, she held. Serby said he intends to appeal. The lead attorney for the defendants, Richard E. Lerner of Wilson, Elser, Moskowitz, Edelman & Dicker, could not be reached for comment.

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