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State of Denial: Hospital Throws Transplant Kidney in Trash, Still Denies Responsibility

State of Denial: Hospital Throws Transplant Kidney in Trash, Still Denies Responsibility

One question lawyers get all the time is how a criminal defendant who "everyone knows is guilty" can plead not guilty and have a trial. Well, that's simply a functionCHRIS_REGAN.jpg of how our system works. The criminal defendant, armed with the presumption of innocence, can "put the state to its proof" and require the government to put on a case that a crime was committed. A criminal defendant also has the "right to remain silent," guaranteed by the Fifth Amendment to the United States Constitution, meaning that a criminal defendant does not have to take the stand or make any statements about the crime.

In civil cases, things are different. In a civil case there is no presumption of innocence. There is also no right to remain silent. Even so, that doesn't stop corporations, banks and other types of defendants in civil courts from behaving as though they are in criminal court. This was shown recently in a Toledo Hospital case. A young woman named Sarah Fudacz was in need of a kidney transplant. Her brother had been found to be a perfect match and decided to donate one of his two kidneys to save his sister's life. But rather than handle the kidney properly after it was removed from Mr. Fudacz's brother, however, the hospital personnel simply threw it in the trash.

Needless to say, organs set for transplant are subject to strict protective rules and procedures. Care needs to be taken with them, for obvious reasons. The failure to follow those procedures and the act of throwing away an organ needed to save a life is "negligence," better described as carelessness or a failure to handle something according to the safety rules. This type of failure doesn't mean that the hospital has to close down or that the doctors or nurses involved lose their licenses. Far from it. This type of situation simply calls for the hospital to pay fair compensation to the victims for the harms and losses (in this case several additional surgeries) inflicted on the victims. Hospitals and doctors carry insurance for this type of situation.

But often, companies and their insurers take the criminal court approach of deny and litigate even though they know they are at fault. The University of Toledo Medical Center, even though it admits throwing away the kidney, is headed into court to deny any negligence at all and to refuse to pay any compensation to the victims of this stunningly careless act. The hospital's behavior exhibits a common legal mindset among civil defendants. That is: "We did it. We know we did it. We know it was wrong, but we're still going to take our chances in court." This type of behavior is wrong. Throwing away a lifesaving organ is negligence, and the hospital can and should admit it.

As Geoff Brown blogged recently, nearly 100,000 Americans lose their lives due to preventable medical errors every year. The stubborn unwillingness of certain medical corporations and providers to learn from their mistakes is exhibited in theHsign.png Toledo Hospital case. When necessary tests are ordered but not performed and harm results, negligence has occurred. There should be no trouble forthrightly admitting to it, particularly when damages are "capped" in most states and, therefore, the price to pay is often relatively modest. Likewise, when appropriate monitoring of patients does not take place, as in Boggs v. Camden-Clark Memorial Hospital, or when appropriate follow-up care is not rendered after a surgery or procedure and harm or deaths result, compensation is owed. Medical corporations and providers should be happy to have their insurance company compensate the victims, and their focus should be on learning from what happened to make sure that it never happens again.

Unfortunately, that's not what typically goes on in 2013. As shown by the Toledo Hospital case, no matter now clear-cut the negligence, medical defendants and their insurance companies often deny any fault, putting the plaintiffs through the expensive ordeal of trial, clogging up the courts, and wasting judicial resources. Because of the cost of these proceedings, largely imposed on victims and the courts by insurance companies hoping to "catch a break" by confusing the issues, muddying the waters, and persuading the jury to find against the victim, medical malpractice cases rarely see trial unless there is compelling evidence that a clear-cut act of carelessness was committed and the victim was harmed. Nonetheless, until the mentalities of these insurance companies change, our courts will continue to see more of these cases than really need to go to trial.


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