Medical and Legal Breakthrough: Court Allows Bone Marrow Donors to be Paid! Kingston, New York Medical Malpractice Lawyer Provides History and Weighs-in

John Fisher
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             A major case just decided by the 9th Circuit Court of Appeals, which is in San Francisco, California, determined that certain bone marrow donors can get paid for their life-saving donations. This is a monumental and break-through decision that will ripple throughout the United States!

 

            But a little background is needed.  The court system in the United States can be complicated!  While each state is different, the New York system isn’t too far off (besides naming).  First, you have specialized courts like Family Court (everything family law related like custody but NOT divorce), the Court of Claims (suing the State), and Surrogate’s Court (probating wills, administration, etc), among some other courts.  Then second, you have some general trial courts with broad jurisdiction of what types of cases they can hear but limited in the amount of money allowed.  These courts include town, village, city, district (Long Island only), and county courts.  Third, you have the court with the broadest and most general jurisdiction in the state with the ability to hear virtually every kind of case; in New York that is the Supreme Court but other states that is the Superior Court.  Fourth, you have the appeals courts—called the Appellate Division—which hear appeals from trial courts; they jurisdiction is quite limited to JUST appeals and in very rare circumstances some tax cases.  They are usually spread out geographically throughout the state; New York has four spread out two south, and one north, and one west.  Last, you have the highest court in the state—called the Court of Appeals in New York but in almost every other state called the Supreme Court—which has the MOST limited jurisdiction.  These courts can only hear appeals from the appeals court, except in very, very rare circumstances.  But these courts also have the most power because they have the final say.

 

            The federal system is similar to the state system.  You have some other courts like international trade or bankruptcy court as specialty courts.  The main trial level court is the District Court which each state as at least one, usually multiple ones spread out geographically through the state.  For example, New York has a Northern, Eastern, Southern, and Western District Court.  From there, appeals go to one of the 13 Circuit Courts.  Those are also geographically spread out, but can hear cases that are not contiguous.  For example, the 9th Circuit in this blog post hears cases from district courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. (!)  New York is in the Second Circuit, which is shared by just Connecticut and Vermont.  Last in the federal system, and most obvious, is the Supreme Court which has ultimate power to bind all Circuits and even states.

 

            Why this ruling by the 9th Circuit that bone marrow donors can get paid is so important is because the National Organ Transplant Act that the US Congress passed in 1984 made it illegal for people to sell organs.  New York also has a similar provision in the Public Health Law Section 4307 that makes it illegal to give anything of “valuable consideration [for] any human organ.”  This is even broader and makes it illegal to even barter for organs.  This is also an E Felony, meaning that it is the lowest level Felony but still provides for prison time of more than a year!  Most importantly, this does not prevent “daisy chains” which allows for person A to donate an organ to person B, if person B or even C on B’s behalf donates an organ to another person.

 

            Bone marrow donations have constituted an organ transplant and thus illegal for a person to receive compensation for up until now.  The court analogized it with donating blood plasma, which is basically the same process, because blood plasma donors actually get paid.  That is because a new medical breakthrough harvests the cells which eventually go into marrow form the donor’s bloodstream instead of the actual marrow.  Therefore, it is JUST like taking blood plasma!

 

            I agree and hope this really catches root nation-wide.  With thousands and tens of thousands of patients needing bone marrow, hopefully a financial incentive during these tough economic times will induce people to donate these bone marrow cells to help save more lives.  Moreover, this new procedure makes it MUCH easier to get bone marrow donations, because those donations are generally very, very painful until now; it’s like a blood test!  Still, this procedure can weaken the donor a little, but it is much less painful and more beneficial for the donee.  Overall, I fully support this and hope to see bone marrow donation increase greatly! 


            But what do you think?  Should bone marrow donors get paid?  Should overall organ donors get paid per organ? I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] .  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 

 

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