Key Points

  • The Indiana Court of Appeals held that an organ procurement coordinator's search of the state donor registry to determine a dying patient's donor status is not 'health care' under the Medical Malpractice Act because it was not curative, salutary, or otherwise intended to benefit the patient's health.
  • Relying on Weldon v. Universal Reagents, Inc., the court held that health benefits to a would-be organ or tissue recipient, a non-claimant third party, cannot make the conduct health care to the patient.
  • The court held that RUAGA section 15(a), Ind. Code § 29-2-16.1-15(a)(3), places the duty to search the donor registry on the procurement organization, not the referring hospital, and ordered summary judgment for the hospital.
  • The court did not reach the hospital's alternative claim of immunity under RUAGA section 17 and denied two motions to strike as moot.
  • The court affirmed the trial court's preliminary determination that the MMA does not apply, and reversed and remanded the denial of the hospital's summary judgment motion for entry of judgment in the hospital's favor.

A widow whose husband's corneas were removed after an organ procurement worker matched him to the wrong man in Indiana's donor registry may pursue her negligence claims directly in court, without first going through the state's medical malpractice process, the Indiana Court of Appeals ruled Monday.

Judge Weissmann wrote for the panel, and Judges Altice and Foley concurred. The court held that the registry search "was not curative, salutary, or otherwise intended to benefit Russell's health" and so fell outside Indiana's Medical Malpractice Act. The panel also ordered judgment for the hospital where Russell A. Foust died, holding that a state donation statute assigns the duty to search the registry to the procurement organization, not to the hospital that refers a dying patient.

The decision keeps Diana Foust's lawsuit against the procurement organization, its employee and an eye bank in Hamilton Superior Court. The malpractice act requires a medical review panel to issue an opinion on a proposed complaint before a claimant can sue a health care provider. The ruling places a procurement organization's registry check, performed for the benefit of a potential recipient, outside that requirement.

Russell Foust, 65, was admitted to the hospital on Sept. 11, 2021, with septic shock following a prosthetic knee infection, according to the opinion. He died of sepsis in the intensive care unit ten days later. On the morning of his death, an ICU nurse called the procurement organization to refer him for potential organ and tissue donation, and the organization assigned a coordinator to determine whether he was a registered donor.

The nurse correctly gave his name and birth date, Russell A. Foust, born Dec. 28, 1955. The coordinator matched him instead to Russell N. Foust, born June 1, 1954, and recorded his status as "Registered Yes." The coordinator found him ineligible to donate organs but eligible to donate corneal tissue.

After Russell Foust died at 11:07 a.m., the coordinator told Indiana Lions Eye Bank Inc., which does business as VisionFirst Indiana Lions Eye Bank, that he was a registered donor. The eye bank contacted his wife. "Diana was surprised to learn that Russell was a registered organ and tissue donor because anatomical gifts are against the family's religion," Weissmann wrote. "But she felt bound to honor what she was told were Russell's wishes" and gave oral consent. An eye bank representative removed the tissue at 5 p.m. The opinion states that "the record does not reveal what happened to the tissue after its removal."

The eye bank discovered the mismatch the next day and told Diana Foust that the tissue had been removed in error. She first filed a proposed malpractice complaint with the Indiana Department of Insurance. She then sued the hospital, the procurement organization, the coordinator and the eye bank in civil court for negligent infliction of emotional distress, a claim seeking damages for emotional distress she allegedly suffered because of the defendants' negligent acts or omissions.

Diana Foust asked the trial court for a preliminary determination that the malpractice act did not apply. She framed her claims around the registry search, arguing that the defendants "failed to carefully verify if Russell's personal identifying information matched the details of the person on their registry." The hospital, the procurement organization and the coordinator, all identified in the case only as anonymous health care providers, argued that the act applied. The hospital also moved for summary judgment. The trial court ruled that the act did not apply, denied the hospital's motion and certified both rulings for interlocutory appeal.

The appeals court looked to its 1999 decision in Weldon v. Universal Reagents, Inc., which held that the act did not cover a blood donor's suit over injections given to produce a medical product for certain pregnant women. Those injections, the court explained, were performed for the sole benefit of third parties. Weissmann wrote that the registry check in the Foust case was similar. "The search was done for the sole benefit of the would-be recipient of any organ or tissue Russell would have donated had he been a registered organ and tissue donor and been deemed medically eligible to donate," the opinion states.

The providers argued that the health benefit to a potential recipient was enough to make the search health care. The panel held that a third party who is not bringing the claim does not qualify as a traditional patient under the act, so a benefit to that person does not qualify. The providers also argued that the search served Russell Foust himself because it could have uncovered a wish to donate. "Providers cannot claim the search benefited Russell by uncovering a wish the record does not show he held," Weissmann wrote.

The opinion added that even if Russell Foust had held that wish, the providers "do not explain how honoring a person's premortem decision to make postmortem anatomical gifts can be considered curative, salutary, or otherwise intended to benefit that person's health."

The hospital won on a separate ground. It argued that it never searched the registry and that Section 15(a) of Indiana's Revised Uniform Anatomical Gift Act imposed no duty on it to do so. That section provides that when a hospital refers a dying patient, "the organization shall make a reasonable search of . . . the Indiana donor registry . . . to ascertain whether the individual has made an anatomical gift."

"We have little trouble concluding that RUAGA § 15(a) did not impose on Hospital a duty to search the donor registry," Weissmann wrote. The court noted that Diana Foust filed no written response to the hospital's motion and argued only the hospital's alternative immunity defense at the hearing. Because the duty question decided the motion, the panel did not reach immunity. The panel heard oral argument on Sept. 1 at DePauw University.

Lawyers for the procurement organization and its coordinator included Inge Verstraeten Porter of Reminger Co., L.P.A. Diana Foust's lawyers included Katherine A. Piscione of Waldron Tate Land, LLC.

The appeals court affirmed the ruling that the malpractice act does not apply and reversed the denial of summary judgment, sending the case back to Hamilton Superior Court with instructions to enter judgment for the hospital. Under Indiana Appellate Rule 65(E), the trial court and the parties may not act in reliance on the opinion until it is certified.