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Organ Donation Mistake Does Not Give Rise To Legal Liability

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Heather Lynn Ramirez died after a tragic one-car accident on March 22, 1995. Prior to her death, she had been transported to Tucson Medical Center, one of Tucson’s more prominent hospitals. Shortly after her death, a TMC social worker approached the family about the possibility of donating some or all of Heather’s organs.

After discussing the issue with the social worker, family members agreed to permit harvesting of Heather’s eyes, skin, connective tissue, veins and heart valves. One of her parents was uncomfortable about consenting to donation of bones, and so the social worker scratched that option out on the standard organ donation form. The family also insisted that Heather’s body not be disfigured, as they intended to have a full viewing.

After securing the family’s consent, the social worker contacted the American Red Cross, which manages a donor development program. The social worker conveyed the information to the Red Cross worker, but somehow the two limitations did not get included on the Red Cross’ form authorizing collection of the organs. When Red Cross staff members arrived later that night to harvest organs, they were unaware of the family’s wishes, and took the heart, femur bones and other tissues.

When Heather’s family learned that their denial of authority to harvest bones had been ignored, they sued TMC and the Red Cross for damages. Before trial, they settled their claims against the Red Cross, and pursued litigation against only the hospital. They alleged battery, gross medical negligence, breach of contract, and intentional and/or negligent infliction of emotional distress. Pima County Superior Court Judge Bernardo Velasco dismissed the claims against TMC, and Heather’s family appealed.

Arizona is one of nineteen states to adopt the Uniform Anatomical Gift Act. That law requires hospitals to approach families about organ donation, and immunizes the hospital from any liability for proceeding in good faith. TMC argued that the failure to convey the family’s limitation did not amount to bad faith, and that the hospital was not liable for the mistake. Heather’s family countered that TMC failed to precisely follow the Uniform Act, and that it could not take advantage of the immunity included in the Act.

The Arizona Court of Appeals, noted that there are currently over 43,000 Americans on various waiting lists for donated organs, and that nine persons die each day while awaiting organ donations. Based on that need, said the Court, the legislature properly granted broad immunity to transplant coordinators and hospital personnel.

It is often argued that a dead body is the “property” of the next of kin, and that mishandling of a body gives rise to a property claim. In rejecting that argument, the Court noted that the alleged property interest “did not exist while the decedent was living, cannot be conveyed, can be used only for the one purpose of burial, and not only has no pecuniary value but is a source of liability for funeral expenses. It seems reasonably obvious that such ‘property’ is something evolved out of thin air to meet the occasion, and that in reality the personal feelings of the survivors are being protected, under a fiction likely to deceive no one but a lawyer.” Any claim by family members must rely on the emotional distress caused to them by the mistreatment of the body, and that would require a showing of wanton, reckless or intentional conduct on the part of the hospital. Ramirez v. Health Partners of Southern Arizona, June 23, 1998.

Arizona’s version of the Uniform Anatomical Gifts Act includes a broader grant of immunity than the original Act. It is now clear that hospitals can rely on that extension of immunity for any action made in good faith.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.