Nebraska high court denies damages to Omaha kidney donor

[Karol]

Published Saturday October 6, 2012

Nebraska high court denies damages to Omaha kidney donor

By Paul Hammel
WORLD-HERALD BUREAU

LINCOLN — The Nebraska Supreme Court ruled Friday that once a donor provides an organ for transplant, the donor cannot recover damages if the subsequent transplant surgery goes awry.
The ruling, the first in the state on a rarely raised legal issue, came in the case of an Omaha man, Sean Olson, who donated a kidney to his father.
Although the kidney removal surgery was successful in 2009, the father, Daniel Olson of Grundy County, Iowa, experienced complications after the transplant. About two weeks later, the kidney had to be removed.
The son and the father, in separate lawsuits, alleged that surgeons working at the University of Nebraska Medical Center had ruined the kidney by obstructing blood flow to the transplanted organ by some errant sutures.
In the son's lawsuit, the state's highest court ruled Friday that doctors did not owe a “duty of care” to the organ donor once the kidney had been successfully removed.
The Supreme Court, in upholding a decision to dismiss the lawsuit by Douglas County District Court Judge Joseph Troia, said that no patient-physician relationship with the son existed during the subsequent transplant surgery with the father.
It was the first time a Nebraska court had ruled on the issue, and only the third case nationally on whether an organ donor can collect damages if a subsequent transplant fails.
Omaha attorney Joe Daly, who represented the lead surgeon and her employer, said he was pleased by the decision.
“They were basically asking the court to create new law,” Daly said, an invitation the court declined.
Greg Scaglione, an Omaha lawyer who represents the Olson family, said a Supreme Court appeal was pursued because state law was unclear on the rights of an organ donor.
He said the son had suffered damages by giving up one of his kidneys, thus putting himself at future risk, and had lost the benefit of providing the organ.
The Supreme Court, however, ruled that any risk to the son ended after the successful removal of the kidney, and that all allegations of negligence occurred after that point.
The father's lawsuit against the lead surgeon, Dr. Lucile Wrenshall, and her employer, the University of Nebraska Medical Center Physicians, is scheduled for trial on March 15.
Scaglione said the father is on a transplant waiting list for a new kidney.
Daly said the surgeon and the doctor's group maintain there was no negligence in the transplant.
Contact the writer:
402-473-9584, paul.hammel@owh.com

http://www.omaha.com/article/20121006/LIVEWELL01/710069919/1016