Carey v. New England Organ Bank

• Decision Date: 15 March 2006
• Citation: 843 N.E.2d 1070,446 Mass. 270
• Parties: Richard CAREY & another<SMALL><SUP>1</SUP></SMALL> v. NEW ENGLAND ORGAN BANK & others.<SMALL><SUP>2</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

843 N.E.2d 1070

446 Mass. 270

Richard CAREY & another¹ v. NEW ENGLAND ORGAN BANK & others.²

Supreme Judicial Court of Massachusetts, Essex.

Argued January 5, 2006.

Decided March 15, 2006.

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Roy F. Gelineau, Salem (Anthony Kline with him) for the plaintiffs.

Pamela S. Gilman, Boston (Andrew R. Weiner with her) for New England Organ Bank.

Brian Sullivan, Fall River, for New England Eye & Tissue Transplant Bank & another, was present but did not argue.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

COWIN, J.

The plaintiffs in this case, Richard and Margaret Carey, seek recovery for the actions of the defendants, New England Organ Bank (the Organ Bank) and New England Eye & Tissue Bank (the Eye & Tissue Bank), and the parent organization of the Eye & Tissue Bank, Tissue Banks International (TBI).³ The claims arose from an unsuccessful attempt by the plaintiffs to donate the tissues of their deceased son for transplantation. The complaint in the Superior Court stated claims for negligence, misrepresentation, tortious interference with a dead body, and negligent infliction of emotional distress. The defendants moved for summary judgment. Although the complaint contained only the aforementioned counts, materials submitted in connection with the defendants' motion for summary judgment essentially transformed the case into one involving issues of compliance with the Massachusetts version of the Uniform Anatomical Gift Act (UAGA), G.L. c. 113, §§ 7-13 (the statute). A judge granted summary judgment to the defendants after determining that the "good faith" provision of the statute, G.L. c. 113, § 13(c ), provided them with immunity.

Since the statute has not yet been construed in Massachusetts, we discuss the statute's provisions as they relate to this case, examine whether the defendants failed to comply with any provision of the statute, and if so, address whether the defendants are immunized against judgment by the "good faith" provision, id. We conclude that most of the acts or omissions that generated this dispute did not contravene the statutory requirements and that, as to the sole statutory violation, the defendants are protected by the "good faith" section.

A brief overview of the statutory scheme is helpful to an understanding of the dispute. The UAGA, as approved by the National Conference of Commissioners on Uniform State Laws in 1968, was codified in Massachusetts (with changes immaterial to this case) as G.L. c. 113, §§ 7-13. See St.1971, c. 653. The UAGA was intended, among other things, to "encourage the making of anatomical gifts" by eliminating uncertainty as to the legal liability of those authorizing and receiving anatomical gifts, while respecting dignified disposition of human remains. Prefatory note to UAGA (1968), 8A U.L.A. 71 (Master ed.2003). Improved clarity was particularly beneficial because, typically, time is very limited for consent and procurement of certain body parts. See, e.g., comment to UAGA (1968) § 2(b ), supra at 117. Some variation of the UAGA was adopted by all fifty States and the District of Columbia.⁴ Prefatory note to UAGA (1987), supra at 4.

We summarize the portions of the statute that are pertinent to this appeal. Certain parties (essentially the next of kin of the decedent) may make an anatomical donation "after death or immediately before death," but a recipient is prohibited from accepting a gift where it has "actual notice of contrary indications by the decedent" or notice that the gift "is opposed by" certain other persons.⁵ G. L. c. 113, § 8(d ). Qualified banks or storage facilities may receive "gifts of bodies or parts thereof" for medical education, research, therapy, or transplantation. G.L. c. 113, § 9(3). "Any [anatomical] gift . . . shall be made by a document signed by [the person giving consent], or made by his telegraphic, recorded telephonic or other recorded message." G.L. c. 113, § 10(e ). At the time of the gifts in this case, hospitals or their designated representatives were required to "inform" certain persons of "the opportunity" to authorize "a gift of all or part of the decedent's body for purposes of organ and tissue transplantation."⁶ G.L. c. 113, § 8(b ), as appearing in St.1986, c. 360, § 2(b ). The requirement to inform applied, however, only if "(1) no actual notice of contrary intentions by such persons ha[d] been received, (2) such information [would] not cause undue emotional stress to the next of kin[,] and (3) consent to such transplantation would yield an organ or tissue donation suitable for use in accordance with medical criteria. . . ."⁷ Id. "A person who acts in good faith in accordance with the terms of" the statute "shall not be liable" civilly or criminally "for his act." G.L. c. 113, § 13(c ).

The plaintiffs contend that the defendants' acts were not authorized by the statute, and seek to identify genuine issues of material fact to defeat the grant of summary judgment. This appeal requires that we interpret the provisions for the first time. We hold that the judge correctly concluded that no genuine issue of material fact prevented the allowance of summary judgment.

Background. On review of summary judgment, we make all permissible inferences favorable to the nonmoving party, here the plaintiffs, and resolve any disputes or conflicts in the summary judgment materials in their favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202, 203, 581 N.E.2d 475 (1991). See Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974). The evidence in the record viewed in this manner is as follows.

The plaintiffs' sixteen year-old son, Adam Carey, was mortally injured in a vehicle mishap at the Kernwood Country Club in Beverly at about 10 A.M. on September 16, 2000. Adam received emergency treatment and was taken to a local hospital, but died about one hour later, at 10:58 A.M. Hospital staff discussed anatomical donation with the plaintiffs and then contacted the Organ Bank, whose representative, Jorge Duran, spoke with Adam's father, Richard Carey, by telephone about the giving of an anatomical gift.

The Organ Bank's procedure at the time called for its representative to read, by telephone, to the appropriate person (here the father) a form entitled "Consent for Organ and Tissue Donation," and record the responses. The form was essentially a lengthy checklist that permitted the parent or other authorized person to consent or refuse with respect to many specific tissues and organs, and to consent or refuse to allow use of gifts for medical research if the organs or tissues were determined to be unsuited to transplantation and therapy.

Duran followed this procedure. At 1:06 P.M., about two hours after Adam expired, Duran completed the consent form while speaking with the father by telephone. Tara Conway, also an Organ Bank employee, listened to the conversation on another telephone and signed the form as a witness.

Federal regulations in effect at the time prohibited transplantation of organs and tissue if so much saline had been infused into the donor that the resulting dilution of blood would significantly affect testing for infectious diseases, and no preinfusion sample was available for testing. See 21 C.F.R. § 1270.21(h)(2) (2000). Moments before Duran completed the consent form, a nurse at the hospital reported to Duran, among other things, that Adam had received substantial infusions of saline during emergency treatment, and that no preinfusion samples of his blood were available for testing.⁸ On receipt of this information, Duran had sufficient information to determine, had he performed the necessary calculation, that Adam's tissues would not be suitable for human transplantation.

Duran never told Adam's father that Adam might be ineligible to be a transplant donor. Instead, he completed the consent form. Adam's father made a gift of Adam's skin, blood vessels, eyes, and certain other tissues for transplantation or therapy. Duran recorded these responses. Viewing the evidence in the light most favorable to the plaintiffs, Adam's father refused to donate Adam's heart "for valves," brain, or a specific blood vessel.⁹ Duran indicated the opposite, i.e., that the father consented to a gift of these tissues and organs. Adam's father similarly refused to permit use of the tissues and organs for medical research if not useable for transplantation or therapy. Duran nonetheless wrote the opposite.¹⁰,¹¹ The Organ Bank did not make an audio recording of the conversation.¹²

Based on Duran's rendering of the father's wishes, which we assume for purposes of this decision was inaccurate, the Organ Bank proceeded to harvest Adam's tissues. An organization apparently acting on its behalf, Cryolife, Inc., procured several blood vessels from Adam's body at about 8:30 P.M., including the vessel for which Adam's father refused consent. At about 9 P.M., the Eye & Tissue Bank recovered Adam's corneas and a graft of skin. There is no evidence that Adam's heart valves and brain, for which Duran inaccurately recorded consent, were harvested, and there is no dispute with respect to these body parts.

During the next few days, the defendants noted that the harvested tissues were unsuitable for transplantation for various reasons. The tissues were discarded, and no anatomical gifts were used for those purposes or for medical education or research.

Despite this, the defendants contacted the plaintiffs by letter to report erroneously they had achieved success rather than failure. The Eye & Tissue Bank wrote that Adam's right cornea had been successfully transplanted. The Organ Bank wrote that the harvested blood vessels were in quarantine and would later be transplanted, although by that time they had been rejected. In a subsequent letter, the Eye & Tissue Bank apologized for giving the plaintiffs incorrect information and...