'Tis Better To Receive: The Case for an Organ Donee's Cause of Action

Abstract

For five years, Robert Colavito suffered from end-stage renal disease for which he was placed on a kidney transplant waiting list. On August 21, 2002, Colavito's longtime friend, Peter Lucia, died of intracranial bleeding. Lucia's widow decided to donate both of his kidneys to Colavito. Lucia's left kidney was air-lifted to a Miami hospital. But contrary to his widow's wishes, the right kidney remained in New York, in the custody of the New York Organ Donor Network (NYODN). On August 23, 2002, Colavito was fully prepared for surgery when Dr. George Burke, his surgeon, discovered that the donated left kidney was irreparably damaged, and therefore useless for transplantation. When a member of Burke's staff called the NYODN to request the second kidney for Colavito's use, he was told that it already had been transplanted into another patient. Subsequent tests indicated that both of Lucia's kidneys were incompatible with Colavito's antibodies, so neither could have been transplanted successfully.