Prosecuting a transplant surgeon for an excess of zeal--and some dubious practices

An interesting case is currently unfolding in California, involving the prosecution of a transplant surgeon for inappropriate treatment of the patient from whom the desired organs were to be procured. I've been asked for comment. One never knows in these circumstances what will or will not be included in a journalistic piece, so let me set forth my comment in full here:


While organ transplantation currently enjoys a very good press, it was not always so. The field has been shadowed by a number of public suspicions and concerns since its inception (and even before, reflected in works of science fiction and horror--back to Frankenstein). A particularly salient concern, even today, is that physicians eager to "harvest" organs to save lives will disregard the interests of potential donors (really, organ "sources", since relatively few give personal permission) and/or exert inappropriate pressure on family members. There has been a particular horror that organs will be taken from the bodies of still living patients, causing their death, to serve the "superior" interests of potential recipients. The criminal law regards the removal (with or without permission) of a vital organ from a still living patient, causing that patient's death, as a homicide, and various procedures have been established to protect against the reality, and the perception, that transplant surgeons, and other medical personnel, "operate" with a conflict of interest of this sort. For precisely this reason, transplantation protocols, and many state laws and regulations governing them, insist that one team perform the transplantation, and another team, devoted solely to the interests of the patient from whom the organs are to be removed, attend to that patient, oversee the dying patient's care, and declare that patient's death. These procedures, if meticulously followed, serve to protect the entire transplantation enterprise from suspicions of abuse.

Recent protocols for so-called "donation after cardiac death" draw a very fine line between orchestrating the removal of life-sustaining measures and superintending the donor's dying process and the removal of organs for transplantation purposes. In this setting, it is especially important that the medical institution and professional teams be well prepared and trained to follow carefully worked-out protocols, both for the protection and proper care of the donor and to assure public confidence in the integrity of the process. Some experts (including myself and fellow bioethicists Renee Fox and Judith Swazey) have been wary of moving in this direction, fearing that the zealousness to procure organs (understandable, given their life-saving potential) will cause physicians and procurement teams to overstep appropriate boundaries intended to protect patient and process. Donation after cardiac death leaves a very narrow margin of error in this domain, and it is rather clear in this case that relevant lines were crossed. Whether that is best regarded as a matter for criminal prosecution or for civil penalties and professional discipline will depend on particular facts of the individual case, and I am in no position to speak to the facts of this particular case. From what has been written, though, it would appear that this is a textbook case of how not to do things, and a potent reminder of the powerful temptations to stretch, and perhaps break, the rules in the quest for life-saving organs. Ironically, in this case, no useful organs were procured, and public confidence in the integrity of organ procurement methods was significantly undermined.

Some bioethicists have argued that society should become even more zealous in its pursuit of organs, lessening requirements for consent, providing monetary incentives for donation, and even doing away with the so-called "dead donor rule", which prohibits harvesting vital organs from still-living patients, thus directly causing their deaths. I think this case provides a sobering reminder of some of the risks of ever more aggressive means of procuring organs for transplantation purposes.