A patient fills out a medical form in a hospital office.
INDIANAPOLIS – An Indiana hospital won’t be penalized for mistakenly thinking a deceased patient was an organ-donor and arranging for his corneal tissue to be taken.
The state Court of Appeals on Oct. 26 ruled for a hospital, listed as "anonymous” hospital in court documents, in a lawsuit surrounding the body of 65-year-old Russell Foust. A member of an organ procurement agency, also sued, erroneously determined him to be a registered organ and tissue donor.
The actual donor had the same first and last names and was born only a year earlier, and Indiana Lions Eye Bank was notified. After Foust’s passing in 2021, his widow Diana was surprised to find out he was an organ donor but wanted to honor what she thought his husband’s wishes were.
His corneal tissue was removed. Diana Foust’s subsequent lawsuit originally alleged medical malpractice but she switched that out for a claim of negligent infliction of emotional distress.
The good news for her in the Court of Appeals’ ruling is that it determined her claims do not sound in medical malpractice and thus aren’t subject to different pleading requirements. She has sued several parties but lost her case against the hospital as a result of the ruling. It is up to the organ procurement organization to conduct searches and not the hospital.
“Because Hospital did not owe Russell the duty on which Diana’s negligence claims are based, it is entitled to judgment as a matter of law,” Judge Leanna Weissman wrote in overturning a trial court ruling.
Weissman and other judges rejected the idea that the accident happened as part of Foust’s medical treatment. A search of a database is not “health care,” the court ruled, nor are the health benefits that a recipient might receive from his corneal tissue.
“Providers also urge us to consider the registry search as benefiting Russell because, without it, his desire to be an organ and tissue donor might have gone undiscovered,” Weissman wrote.
“We are not persuaded. Nothing in the record suggests that Russell wanted to be a donor, the registry search resulted in him being mismatched to a different person, and Diana claims donation was against his religion. Providers cannot claim the search benefited Russell by uncovering a wish the record does not show he held.”
