American Journal of Law & Medicine

Hastening death: dying, dignity and the organ shortage gap.

"The hour of departure has arrived, and we go our ways--I go to die, and you to live. Which is the better, God only knows."

Socrates, Plato's Apology, sct. 42a

I. INTRODUCTION

Imagine that you are lying in a hospital: conscious, partially paralyzed, and terminally ill. Physicians predict that you will die in a couple of weeks. You have heard about the shortage of viable organs in the United States and consider consenting to transplantation of your organs after you die. (1) Trying not to think about your imminent death, you open the New York Times brought by your family and skim the table of contents. You notice an article and slowly start to read. The headline reads "Surgeon Accused of Hurrying Death of Patient to Get Organs." (2) After you finish reading, you are not willing to donate your organs for transplantation. It does not matter that you are altruistic or that you want your life-sustaining treatment to be removed when your condition worsens. You do not want your death to be hastened. You do not want the physician to play God. You want to die with dignity in a peaceful and friendly environment.

America experiences a shortage of organs for transplantation. (3) According to data gathered by the Organ Procurement and Transplantation Network ("OPTN") (4), as of August 4, 2009 there are 102,985 candidates waiting for transplantation. (5) Yet, as of July 31, 2009, only 6,004 donations had been made in the previous seven months. (6) As demonstrated by this disparity, the demand for organs in 2009 will greatly outweigh the supply.

The common emphasis in media and scholarly work on the shortage of organs creates pressures on individuals to donate and on physicians to encourage patient donations and to make the "best use" of organs and donors available. These pressures generate a conflict of interest between the physician's duty to his present patient and the duty to the anonymous individual who needs an organ.

It is difficult, if not impossible, to determine how many donations were abandoned due to the donors' concerns about the possibility of their deaths being hastened, but it is likely that more than a few refused to consent for just such a reason. These fears influence the number of organs available for donation, (7) and arguably the number of organs that might be donated if proper checks and balances or other means explored infra were in place. In the pursuit of more organs we cannot forget about the dignity of the donor who agrees to transplantation upon his death.

In this paper I will argue that the common law and existing statutory regulations that focus on increasing the number of organs available for transplantation do not satisfactorily protect the donor. This will be shown by analysis of regulations and protocols concerning Donation after Circulatory Determination of Death ("DCDD"). The dignity of the donor at death will be emphasized over the need for more organs. The problem of hastening the donor's death will be highlighted through the analysis of OPTN and hospital policies and liability. I will argue that eases in which physicians or hospitals are accused of hastening a donor's death will be brought less often if proper mechanisms are in place to deter the physician from overzealously pursuing organs. I believe that the pressure that has been put on physicians by society to increase the amount of available organs is one of the causes of misconduct. The imposition of certain regulatory provisions and greater emphasis on others will assure donors and their families that the integrity of the procurement and transplantation procedure will be maintained. Ultimately, effective regulation will increase the number of organs available by encouraging those who fear a hastened death to donate.

It has to be noted that this article does not aspire to be an extensive study of the presented issues. Its purpose is to highlight certain problems and to encourage further discussion in the area I think needs further analysis and insight.

In Section II, I will briefly argue that respecting a donor's dignity at the end of his/her life should be the goal of quality DCDD transplantations, and that this goal should be superior to increasing the number of organs available for transplantation. Section III will provide brief background information concerning the regulation of the organ procurement and transplantation process. Section IV will describe, in detail, the policy requirements imposed on hospitals and physicians during the procurement and transplantation process. The goal will be to answer the question: to what extent do these regulations protect the rights of the donors? In Section V, I will present the liability issues arising out of misconduct in the procurement and transplantation settings. Finally, Section VI will debate solutions for enhancing existing policies.

II. DIGNITY OF THE DONOR AS OPPOSED TO PURSUIT OF ORGANS

Human dignity has been recognized as a constitutional value and one of the central concepts of the legal system in several European Countries. For instance, Article 30 of the Polish Constitution states "The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities." (8) Likewise, German constitutional jurisprudence recognizes the concept of dignity. (9) It is still a question whether dignity plays a central role in the United States Constitution. (10) Some claim that dignity does not play a central role in the American legal understanding. (11) Notwithstanding those objections, U.S. state constitutions refer to dignity and name it expressly as being inviolable. (12) Some commentators argue that dignity is a central theme in the U.S. legal system. (13) Dignity can be viewed as an essential value, especially in the bioethics perspective. (14)

The basis of the position presented in this article is the assumption that respect for the donors' dignity at the end-of-life should always prevail over the interest of society to increase the number of organs for transplantation. Put another way, a physician should keep in mind that respect for his patient's dignity should always come first. A physician should resist pressures to reduce the organ shortage gap if his actions could compromise his patient's dignity.

It is hard to explain exactly what dignity is. (15) I adhere to the definition presented by Sulmasy, who states that: "Intrinsic dignity ... is the intrinsic value of entities that are members of a natural kind ... capable of language, rationality, love, free will, moral agency, creativity, aesthetic sensibility, and an ability to grasp the finite and infinite." (16) He defines intrinsic value as a "value something has by virtue of its being the kind of thing that it is." (17) In his view all members of a natural kind with intrinsic dignity, capable of exercising moral agency, have a moral obligation to themselves and to all other entities with intrinsic dignity. (18) He specifically emphasizes the duty to respect all members of natural groups that possess intrinsic dignity. (19) Some of the rights that are based on this norm are the right not to be killed, not to be treated disrespectfully, and not to be experimented on without consent. (20) Under this framework, it is inappropriate to infringe on a dying individual's dignity for the sake of society and the organ transplant recipient.

In my view, the dignity of a donor should not be sacrificed by the physician for the benefit of another's interest even if the donor is terminally ill and about to die and the donation could save a life. The physician cannot infringe upon his patients' dignity just because the interest of another individual depends on that interference. To say otherwise would lead to treating terminally ill donors as organ silos for society which would deprive them of the respect that they deserve. My recommendations might have the effect that people who need transplantable organs in order to survive would not receive them. I believe, however, that the value of human dignity is so important that it is unacceptable to justify its breach by pointing to other individuals' interests.

If we justify breaches of individual dignity by pointing to the benefit of another, we create a precedent that degrades the value of human life. Maybe the individuals that would benefit from one's breach of dignity would also indirectly lose theirs, as the door for future breach of dignity has been opened. It is equally possible that, due to increased donor protections, there will be more people wIOMilling to donate. After discounting the abandoned transplantations due to dignity concerns, there may be more organs available.

Everyone would like to die with dignity, regardless of the many nuanced definitions of that word. Similarly, most people likely would not want to sacrifice their dignity and be hastened to death to better effect transplantation. (21) These statements lead to the following proposition: society as a whole would approve of a rule that demands respect for the donor's dignity and holds it above the interest society has in increasing the amount of available organs. An organ is never appropriately procured if it is obtained by hastening the donor's death. A 2006 IOM Report indicates that end-of-life care, which focuses on helping the organ donor die with dignity creates a trustworthy system that invites terminally ill patients to donate. (22)

Dresser pinpoints the dignity concerns that arise in medical care of a terminally ill patient. (23) She notes that patients feel a loss of dignity when care intrudes into their personal privacy, like having to wear "flimsy and revealing hospital gowns" or being gossiped about by staff. (24) She claims (and I agree) that dignity is promoted when clinicians a) minimize personal invasions and undertake compensatory efforts to preserve the patient's dignity and privacy; b) communicate with the patient with empathy, presence and compassion; c) honor the patient's ordeal and respect the person enduring the assaults of illness and treatment. (25) Dignity of the patient would be infringed if the physician, under pressure to reduce "the organ shortage gap" would forget about these recommendations and treat the terminally ill donor in an impersonal and demeaning manner.

I believe that dignity in the sense presented above by Sulmasy and Dresser gives foundation to a number of the rights protected by tort law. Dresser indicates, however, that the concept of dignity lacks a settled interpretation. (26) I agree and believe that further studies will reveal more rights and interests than are currently protected by recognized causes of action. I propose that a generic "breach of dignity" claim could protect rights which are not yet recognized by a specific cause of action. Such a claim would be applicable if a patient was treated in accordance with all legal requirements (informed consent, confidentiality and due care) but with disrespect or with impersonal or demeaning care. From the perspective of this paper, the dignity of a terminally ill donor will be infringed when he is treated merely as an organ provider, without the proper respect that should be given to him as a dying human being.

The position of this paper is that quality end-of-life care in the DCDD setting should focus on the donor's interest. Dignity at the end of a terminally ill donor's life is preserved when the policies and comments presented below are obeyed and enforced. …

Log in to your account to read this article – and millions more.