On Memorial Day weekend, Sarah Murnaghan was dying in a bed in the Children’s Hospital of Philadelphia awaiting a lung transplant. Her parents, Fran and Janet Murnaghan, had just begun a public campaign to overturn lung transplant rules that prevented children under the age of 12 from being placed on the adult transplant list. With time running short, her aunt, Sharon Ruddock, worked with family friends in a desperate search for help. They turned to the Philadelphia legal community.
Virtually every major firm in the city has a page on its website touting its pro bono program. On Sunday morning of that weekend, Ruddock emailed each firm’s pro bono coordinator in an email titled “Time Sensitive: Injunctive relief needed for Sarah Murnaghan.” Family friends also reached out. Their outreach was a desperate and essential cry for help that could only be answered by the proverbial Philadelphia lawyer. Pepper Hamilton stepped up.
The Call For Help
Rule 6.1 of the Pennsylvania Rules of Professional Conduct states that “a lawyer should render public interest legal service” and that he or she “may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means.” No doubt, Sarah Murnaghan qualified.
Sarah Murnaghan desperately needed help in her fight with the Organ Procurement and Transplantation Network (OPTN) to change its lung allocation policy. She needed a lawyer to argue that the OPTN’s policy unfairly and arbitrarily favored adults over children when allocating lungs. Time was of the essence, as she only had days left to live.
In the waning days of May, her parents were mounting a public relations campaign using social media. Thousands of people followed Sarah’s story via her mother’s Facebook page. Hundreds of thousands signed an online petition started on www.change.org, but true change would not prove possible without legal intervention.
It was Pepper Hamilton, and a team of lawyers led by Stephen Harvey, who stepped up to the plate and ultimately helped save Sarah’s life. “The greatest thing we can do as lawyers is help others,” Harvey said. “This case gave us a unique and important opportunity to help. We are extremely thankful that the pieces all fell together and that our efforts made a difference.” The team from Pepper Hamilton also included Thomas Gallagher, Eric Rothschild, Chad Holtzman, Melissa Hatch and Stephanie Wahba.
The Temporary Restraining Order
On June 5, the team from Pepper Hamilton sought emergency injunctive relief on behalf of Sarah in federal court to require the secretary of the U.S. Department of Health and Human Services to cease application of the policy that was preventing her from receiving donor lungs. U.S. District Judge Michael M. Baylson of the Eastern District of Pennsylvania granted a TRO, and shortly thereafter, Sarah found herself on the adult lung donor list.
For the first time in a very long time, Sarah and her family had a reason to be hopeful. She could now be considered for the receipt of donated lungs from adults based on the severity of her condition without regard to the fact that she was under 12 years of age.
That same day, the Pepper Hamilton team received an email from the mother of another child at Children’s Hospital of Philadelphia, 11-year-old Javier Acosta, who was in the same position as Sarah. The very next day, June 6, they filed an identical lawsuit on behalf of Javier, and Baylson granted another TRO. Javier also found himself on the adult list.
OPTN Changes Its Policy
On June 10, a few days after the court issued the temporary restraining order, the OPTN met to discuss the under-12 rule as it pertains to lung transplants. It decided to allow patients like Sarah and Javier to have their cases reviewed by transplant professionals on the OPTN Lung Review Board. Fortunately, yet tragically, this was a change that would directly affect Sarah even though she was already on the adult donor list, albeit temporarily, because of the court’s TRO.
On June 12, Sarah and her family received the call they had been waiting for more than 18 months to receive. They had a match, and Sarah was going to receive a set of lungs. Even in the midst of their joy, they found time to express their sorrow and admiration for the loss of the donor’s family. What they did not know was that they were in for an extremely trying 72 hours. Sarah unfortunately rejected the donor lungs. But thanks to the change in policy by the OPTN, she found herself back on the donor list and eligible for a second lung transplant, which came to fruition shortly thereafter.
The next few months were grueling, but Sarah proved herself to be worthy of every effort made on her behalf. She inspired thousands as she endured pneumonia, pushed through multiple post-transplant surgeries, and successfully completed physical therapy after spending many months lying in bed.
Labor Day Weekend
On Labor Day weekend, Sarah was at home with her brothers and sister. She was no longer dying. Instead, her parents now expect that with proper medical care and attention she can grow up and do the things about which she dreams. Her parents offer praise to many, including Sarah’s donors, whom they affectionately call their heroes, and the team from Pepper Hamilton.
Pepper Hamilton set an example that we lawyers ought to applaud and emulate. How many of us would answer that call? When it comes to pro bono, Pepper Hamilton does more than talk the talk – it walks the walk. Congratulations, Pepper. Let’s all follow in their footsteps.
Michael Greco is a partner at employment law firm Fisher & Phillips.