The Centers for Disease Control and Prevention (CDC) just issued a report on a bizarre case involving the death of a transplant patient after he was given a kidney from a donor with rabies. The report would suggest a strong case for liability under the existing tort doctrine.
In my torts class, we discuss liability for blood and other products in hospitals. Many states have passed laws treating blood infusions as services, not products, to limit liability from contamination.
This case involved a donor in Michigan who saved a kitten from a rabid skunk. The skunk had been infected by the silver-haired bat variant of rabies.
In the struggle with the skunk, the donor was scratched on the shin. Within days, he experienced symptoms of rabies and eventually died.
What is most interesting about this report is that the family reported the incident in connection with the organ donation. However, the form did not track rabies due to the relative rarity of such infections.
The donated organs and tissues went to three other recipients. In this case, the person began to experience fever, tremors, difficulty swallowing and fear of water. The recipient died after 51 days.
The case reportedly involves only the fourth such case of rabies transmission through an organ transplant in the U.S. since 1978. As a result, the report states that “no standard guidance currently exists for addressing reported donor animal exposures by transplant teams.”
However, in this case, there was a family report of the infection. It strikes me as manifestly negligent in such a case. The calculus of risk in this case is made more difficult by the obvious time pressures in transplant cases. The question is why such organs and tissues cannot be subject to a comprehensive test for contamination or infection. Rabies tests remain more difficult than other tests, posing a practical problem for testing when time is of the essence.
What is not known is what these patients signed in terms of waivers to be recipients of transplants.
The case represents the type of bizarre scenario that we often include in final exams, where a man fights a skunk to save a kitten, dies with rabies, and then his organs kill a recipient months later. In this case, the family itself appears to have done the right thing in reporting the incident, as the staff failed to convey the information or flag the risk.
After reading this, my daughter who works for an organ donor network, replied:
“I’m super curious where this happened. In the 21 page medical/social interview we complete with donor families, animal bites and or scratches are actually questions asked. He would have ruled out for donation for sure. We have an infectious disease specialist that we can call any time and shuts stuff like this down!! “.
The ball appears to have been dropped somewhere.
Metaphorically, this is an apt depiction of the Turley blog. Where my magats at? Bring your poison.
Then ANON can drink the poison!!! AND GET LOST!
Transplants need to happen within hours. Rabies testing only happens after death and takes a day or two. Thus doctors are facing a choice do the transplant with a very very small chance of rabies, or don’t do the transplant and someone will defiantly die. Easy call.
Transplants have many risks, rabies is one of the lowest risks.
So everyone shut your yapper about liability.
That is patently false. You can test someone to see if they have rabies before death. But only after symptoms start to manifest itself. And it can take days before someone dying from rabies. What happened here is inexcusable.
https://odh.ohio.gov/know-our-programs/zoonotic-disease-program/diseases/rabies
https://www.canada.ca/en/public-health/services/diseases/rabies.html
Your links confirm that the testing is not solid and also not fast. My points remain valid. Also they thought the guy died of a heart attack.
It’s not really a fear of water, that causes the aversion. The rabies virus attacks the nervous system, and the nerves that control swallowing are affected early. The throat muscles begin to spasm from the nerve degradation, which makes the act of swallowing even one’s own saliva a terrifying impossibility. The rabies virus triggers excessive salivation, which the patient or animal refuses to swallow, causing miserable drooling or foaming at the mouth.
Those 51 days would have been Hell. Incomprehensible torment. I hope they were sedated and as unaware as possible before the disease progressed to losing consciousness.
The difficulty of rabies tests of a living subject is inconsequential. The man died of suspected rabies, and should have been automatically struck from the transplant list.
I don’t know if gross negligence covers this scenario. One would think stronger adjectives would be called for.
A little off topic but I live in the country and I haven’t smelled a skunk in probably 10 years or more to the point I forgot they existed. I don’t miss them. Sometimes the stench used to wake me up on the 3rd floor with all the windows closed. Wonder where they’ve all gone.
Really? I am also rural and hardly a day goes by we don’t catch a whiff. Luckily nothing ever gets too close. We think it’s due to the guy on the next property. He has a business desensitizing aggressive dogs. We’re guessing that scent keeps a lot of wildlife at a distance. I’ll occasionally see a raccoon or opossum out front, particularly on garbage night, and we know there is at least one black bear in the township that we’ve seen, but skunks tend to stay back in the woods.
Smell them constantly in Ohio. Maybe your sense of smell is waning…or they’ve all gone to Ohio.
Seems clear, the ball was dropped in pursuit of $$. “What did the patient die of?” “Rabies”, “let’s step back and take a minute.” That’s all you have to do. But I imagine the doctor was yelling, I imagine the financial guy was yelling, and the team did not look close enough. Since it’s the fourth time this has happened (albeit since 1978), it should have been caught. As they say, there is no education in the second kick from a mule.
I’m sure there will be plenty of rabid lawyers lined up to take the case! lol
Here’s a suggestion: on the organ donor form, in addition to all the diseases on the list, add a space titled “Other” with a blank next to it for write-in candidates like “rabies” or “bubonic plague.”
What a wild case, and nice to see there are legal questions that are not just political madness in this age of extraordinary lawfare. I really enjoyed the piece, and the conversation.
,eave it up to George or Gigi to bring politics into this case and criticize Turley 😂😂
This is, based on what is presented here, outright negligence and malpractice. It is incumbent upon the doctor who harvested the organ to be absolutely sure that the organ was not infected. These or similar episodes occurred with HIV and other infectious diseases Over the last several decades.
It appeared the patient died of an infectious disease and there should have been a comprehensive evaluation of the patient to ascertain exactly what the cause of death was. In most transplant programs an infectious illness is a no-brainer as far as ruling out the use of any organ. Sometimes even corneal transplants can convey disease to a recipient. The blood tests are not always not always the last word.
An exacting and comprehensive history of the donor should have revealed the cause. I assume that the doctor would have reviewed the history and then talked to the donor’s family to remove any doubt. With no obvious explanation there should have been no acceptance of the donation, especially since the recipient could have continued on dialysis until a safer donor was found.
This is a major screwup. Lab testing is great but there still is no substitute for an exacting history. There would appear, from my point of view, no defense for this donation.
From what I have read elsewhere about this case, the skunk-organ donor incident was in rural Idaho and the transplant recipient was a patient from Michigan who underwent transplantation surgery in Ohio. Despite experiencing symptoms of rabies after the skunk encounter, including difficulty walking, hallucinations, neck rigidity, and trouble swallowing, the donor’s death was attributed to a heart attack when he was found unresponsive. The likely death from rabies was missed by any physician or “healthcare provider” who treated the donor for these symptoms before his death and by whoever signed the donor’s death certificate. None of this however precludes what was likely negligence on the part of the recipient’s transplantation team.
Professor Turley writes, “The report would suggest a strong case for liability under the existing tort doctrine.”
Ya think? 😀
After so many cutesie “viral” videos of people interacting foolishly with wild (and domestic) animals, allow me to enlighten sophisticated city folks with some crude country wisdom: healthy skunks don’t come out during the day. If you see one out in the daylight, you should reach for your shotgun, not your cell phone. And mind you don’t stand behind it when you pull the trigger.
Yeah, I don’t understand how someone could get into a situation where they got rabies from a skunk. Forget the gun, you see a skunk, you run. I wouldn’t even want to shoot one in case it ruptured the scent sack. Those chemicals are horrific. Just leave it alone and get as far away as possible.
You shoot the skunk so it doesn’t bite the next person. You don’t get as far away from it you get your shotgun stand off 20 ft and remove the danger! Even in counties where they have animal control they don’t always show up!
Your main concern should be to end the threat of spreading rabies to others. Shooting the skunk is the simplest, quickest, easiest, and least painful method.
Agree! The poor kitten just learned the age old, “survival of the fittest”!
I cannot imagine a circumstance in which I approach a live skunk, and most likely a dead one either.
Note to self: Never get close enough to a skunk to be scratched let alone sprayed!
50 shades of AIDS during the transgender pride and intravenous drug pandemic. Monkey pox now, where social progress includes children sodomized, not rape-raped.
Aren’t 3rd worlds fun. Yippee
I am trying to think of a parallel type of problem. Suppose an airline purchases a defective, perhaps even counterfeit, part to service one of its aircraft, and the aircraft crashes as a result. There are serious laws governing the use of such parts. In such a case, liability would rest primarily with the supplier who provided the defective product, with secondary liability falling on the airline for using it.
Applying this idea to the present case would seem to suggest that the victim’s family should bring a suit against the hospital for using the defective heart and against the supplier for failing to test its quality. This analogy does feel somewhat heartless, however.
I saw this story line on an episode of Scrubs
What kind of incompetent healthcare system exists that allows a known or even suspected patient with rabies to have his/her organs enter ANY organ donation program after death? Are we to believe that the original donor had no ’cause of death’ listed and that the ghouls that collect these organs within hours of the donor’s death do not even check for the cause of death? This is the height of imbecility.
Assuming that the original patient who died of rabies was under medical care, one cannot help but wonder why in Sam Hill the treating physician did not block the organ donation. As a (retired) nurse, I understand the time pressure to obtain organs for transplant; however, the medical staff and nursing staff would have known that the patient had requested organ donation, and hence would have had several days to make the decision not to let the organ donation go through.
Because the system wants the money. They need the parts. They know all donated parts are used and therefore defective in some way, but they just want the parts.
Junkyard for people parts. Several years ago UCLA was selling body parts out of their donor supply on the black market. So much for that once stellar institution.
This is a good problem for law students. Each side can be argued, and likely will in real life.
“Each side can be argued.” Really? There doesn’t seem to be a side that would allow a rabies infected organ to be donated.
Man, the ambulance chasers are lined up at the starting block.
This is a rare occasion when I agree with the ambulance chasers. This is absurd!