Request By:
State Senator Elizabeth Tori
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Ross T. Carter, Assistant Attorney General
Opinion of the Attorney General
We have been asked questions regarding the Uniform Anatomical Gift Act, KRS 311.165 to 311.235. From the context of the questions presented, we assume the inquiry to be limited to anatomical gifts made by the donor (rather than next of kin or other person) and not directed to a specific donee.
The first question involves the revocation procedure applicable when intent to denote is expressed by a notation on an operators license.
An individual may execute an anatomical gift of all or part of his body in three ways: by will; by a document other than a will if the document is subscribed by two witnesses; and by a statement on the donor's operators license. KRS 311.195. A gift may be revoked by "a signed card or document found on his person or in his effects," or by "destruction, cancellation, or mutilation of the document and all executed copies thereof." A person who has made an anatomical gift by notation on an operators license may revoke the gift by carrying a signed card to that effect. This procedure might not be sufficiently reassuring to persons who fear that the operators license will be found at time of death but the revocation will not. These persons may request a new operators license under KRS 186.520, which authorizes issuance of a duplicate operators license when the original has been "legitimately lost or destroyed." We believe that revocation of an anatomical gift qualifies as legitimate loss or destruction of the license.
The second question is whether hospitals must notify next of kin before removing donated organs. If the hospital has notice of a donation made by the decedent, such as a notation on an operators license, the answer is no. We said in OAG 75-580,
To implement the intent of the legislature we are compelled to conclude that because the time consumed in obtaining the consent of the next of kin may render the organ unsuitable for transplantation, their consent is not necessary if the part was legally donated under KRS 311.175(4). Of course, if the decedent did not previously donate his body or a part of it, the consent of his next of kin must be obtained despite any medical considerations.
The subsection referred to, KRS 311.175(4), says, "The rights of the donee created by the gift are paramount to the rights of others except as provided by subsection (4) of KRS 311.225 [dealing with autopsies]."
The third question is whether a hospital could be liable for removing organs without permission from the next of kin. Because the hospital does not need to obtain permission from the next of kin, the answer to this question is no. This answer is qualified with the observation that we cannot predict fact patterns, judicial rulings, or jury awards. We can only say what the law is; we cannot ordain how the law will be applied.
The fourth question is whether a hospital could be liable to a potential organ recipient if the hospital waits to obtain permission from the next of kin and the delay renders the organ unusable. Liability is unlikely in light of KRS 311.225(3), which says,
A person who acts in good faith in accord with the terms of KRS 311.165 to 311.235 or with the anatomical gift laws of another state is not liable for damages in any civil action or subject to prosecution in any criminal proceedings for his act.
The official commentary to the uniform act says,
The entire section 7 [codified in Kentucky as KRS 311.125] merits genuinely liberal interpretation to effectuate the purpose and intent of the Uniform Act, that is, to encourage and facilitate the important and ever increasing need for human tissue and organs for medical research, education and therapy, including transplantation.
8A Uniform Laws Annotated p 125 (West 1993).
If a hospital notifies next of kin because it believes such notice to be required by law, KRS 311.125(4) should operate to protect the hospital from liability. If the hospital knows that such notice is not required and yet refuses to remove a donated organ until the notice is given, KRS 311.125(4) would not provide protection from liability. Whether other circumstances would make the hospital liable in damages depends on the unique facts of the situation.
We note in closing that Kentucky has adopted the 1968 version of the uniform law. The 1987 version of the uniform act, adopted by nineteen states, clears up some uncertainties in the original legislation.