Kidney donor can sue doctor over unneeded transplant

A kidney donor can sue a physician for recommending a transplant that allegedly turned out to be unnecessary, a Worcester Superior Court judge has ruled in a case that some lawyers say could create a new area of liability for doctors.

The case, Montalto v. Stoff, is the first in Massachusetts to examine the scope of a doctor’s duty toward an organ donor.

The physician – who had an evaluation session with the donor but did not perform the extraction surgery – argued that there was no physician-patient relationship between them. As a result, he contended that he had no duty to the donor.

But Judge James R. Lemire disagreed, noting that not only did the doctor evaluate the patient, but also he allowed his name to appear as the “attending physician” on lab tests ordered for the donor.

“[W]here a physician improperly advises a patient that she needs a kidney transplant, and a donor known to the physician relies on that advice and needlessly donates a kidney, there is a sufficient physician-patient relationship, based on which that donor is entitled to recover for medical malpractice,” the judge said in refusing the dismiss the donor’s claim.

Boston attorney Russell Pollock, who represents the donor and practices with Campbell, Campbell, Edwards & Conroy, says the decision is “just a small step toward broadening the responsibility of a doctor to anyone who could be harmed by a doctor’s conduct.”

A decision like this could force hospitals to take a closer look at some of their practices – such as cross-coverage on weekends, where a recipient’s surgeon making weekend rounds could conceivably come in contact with a donor, says Doug Hanto, chief of the division of transplantation at Beth Israel Deaconess Medical Center in Boston.

“Perhaps there can’t be cross-coverage because we only want a donor’s surgeon establishing a relationship with a donor,” he said. “This case has already made us think about that.”

Edward Mahoney of Boston, who represented the doctor, could not be reached for comment.

Unnecessary transplant?

Anne Montalto underwent a cadaveric kidney transplant. Nine years later, the kidney began to show signs of failure, which she claims was due to anti-rejection medication she was taking. She was given a different drug and her kidney function allegedly began to improve.

Montalto claimed that her doctors, urologist Philip Ayvazian and nephrologist Jeffrey Stoff, failed to recognize the improvement and negligently advised her to receive another kidney transplant.

Joseph Francis volunteered to donate his kidney to Montalto. Two weeks before the transplant, which was to be performed at the UMass Memorial Medical Center in Worcester, Ayvazian and another doctor evaluated Francis at a urology clinic to ensure that certain urinary issues would not prevent him from serving as a donor.

They ordered several tests, the results of which apparently listed Ayvazian as Francis’s attending physician. Ayvazian’s report discussed Francis’s urinary frequency issues and mentioned that Francis was “interested in donating a kidney to a friend’s daughter.”

After a different team of doctors extracted Francis’s kidney, Ayvazian and Stoff transplanted it into Montalto. The transplant ultimately proved unsuccessful and the new kidney was removed three weeks later. However, the function of Montalto’s cadaveric kidney improved and she survived on that kidney alone.

In 2003, Montalto and Francis brought medical-malpractice claims against Ayvazian and Stoff, alleging that they negligently recommended the transplant, causing both patients to go through unnecessary and dangerous surgical procedures.

Ayvazian sought to dismiss Francis’s claim, arguing that the two had no physician-patient relationship and therefore he had no duty of care toward Francis.

He claimed that his consultation with Francis was about an unrelated matter, not an examination in connection with his planned kidney donation.

Doctor-patient relationship

Despite Ayvazian’s contention that Francis was not his patient, Judge Lemire found that his evaluation of Francis’s urinary issues, his knowledge of Francis’s intent to donate and his name’s appearance on the lab records were evidence of a doctor-patient relationship.

Even so, the judge noted that the alleged malpractice did not arise from the evaluation, but from his recommendation that Montalto needed another kidney transplant.

“Thus, the issue is whether the scope of Ayvazian’s duty of care to Francis includes his allegedly negligent advice to Montalto,” the judge said.

Though no Massachusetts court had examined the scope of a doctor’s duty to an organ donor, the judge observed that according to courts in other states, as long as there is informed consent, a donor who voluntarily gives up a kidney loses the right to sue over an unsuccessful transplant. (Since this case was decided, a Middlesex Superior Court judge threw out a kidney donor’s lawsuit claiming that a doctor’s negligence caused the recipient to require a transplant in the first place.)

But this case was different, the judge said.

“[T]here is sufficient evidence …that a physician-patient relationship existed between Dr. Ayvazian and Francis …This is not a case where Dr. Ayvazian had no contact with Francis,” the judge explained.

Francis also claimed that Ayvazian failed to obtain informed consent from him, and that Francis was forced to rely on the doctor’s advice to Montalto in deciding to donate his kidney in the first place, the judge said.

Accordingly, he denied Ayvazian’s request to dismiss the case.

More suits?

David Gould, a medical-malpractice defense lawyer in Boston who practices with Ficksman Conley, says that the judge probably made the right decision on the facts, given the evidence of a relationship between Francis and Ayvazian.

But he says this decision broadens the potential scope of a doctor’s liability to include donors, while in other cases donors haven’t been able to sue.

The takeaway for doctors, Gould adds, is that they need to be very careful in the advice they give a recipient.

“That’s because if the recipient receives bad advice from a surgeon and the donor relies on that advice in donating an organ where the procedure may not be medically necessary, there could be – at least in this judge’s opinion – enough of a factual dispute to create a physician-patient relationship,” he says.

Martin Foster, a defense lawyer in Cambridge, said the reasoning in this decision could extend beyond the donor-liability context.

For example, said Foster, if a psychiatrist orders a patient to be restrained, a staff member is injured while doing so, and the restraint order turns out to be illegal or improper, does the staff member have a third-party claim against the doctor?

“It’s about as clear as mud,” he says, adding that this case could impose an obligation on doctors involved in a transplant to get informed consent releases directly from all potential third parties.

Boston lawyer Jim Vaccarino, who was Massachusetts General Hospital’s director of legal affairs in the 1970s and now creates and manages professional-liability insurance programs for health care providers, agrees.

“This case definitely represents an expansion of informed consent,” says Vaccarino. “It may have the incidental effect of stifling some [organ] donations.”

Hanto says that hospitals have to reevaluate their procedures when it comes to relationships between physicians, organ recipients and donors.

“The reality of the situation is that we’re going to have to talk with hospital attorneys and find out whether or not we should make a point of not establishing that relationship between a recipient’s surgeon and donor, including rounds on a weekend.”

Questions or comments should be directed to the editor at: reni.gertner@lawyersweekly.com