Organ Donors and Lawsuits; Can a Voluntary Donor Successfully Sue for a Doctor’s Malpractice?

John Fisher
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Stopping Medical Injustice

New York medical malpractice can occur in a variety of circumstances.  Typically we think about surgical procedures and other operations where a doctor obviously causes an injury.  For instance, wrong site surgery where a doctor is supposed to operate on a patient’s left knee, but ends up operating on their right knee.  In addition, foreign object cases where a medical staff inadvertently leaves medical equipment in a patient that does not belong there; such as a scalpel.

More common now in courts are misdiagnose cases, particularly with cancer patients.  This is where a doctor fails to rule out or accurately diagnosis a patient with a condition that is present.  Alone this does not seem hard to successfully bring, however, the statute of limitations creates a major obstacle. 

The statute of limitations pursuant to the Civil Practice Law and Rules section 214-a is two and a half years since the cause of the injury.  This means that the doctor’s misdiagnosis of the patient’s condition must have been within two and a half years since the action is brought.  But since cancer and other related diseases often manifest itself past two and a half years, that means the patient who is told he is healthy and later discoveries it was actually cancer three years later cannot sue the doctor for medical malpractice.

But these are just some more common New York medical malpractice cases.  One uncommon case is related to organ donation.  While New York has one of the lowest rates of organ donations in the United States, which there are current initiatives to increase that number, there may be more organ donation cases in the courts.

The case I want to discuss is actually a little older but is still good law and often cited frequently. In this New York medical malpractice case, a mother voluntarily donated one kidney to her dying son who was in need of a kidney.  The doctor’s said that this procedure would work and the kidney was compatible.  However, it turns out that the kidney was NOT compatible and it resulted in the mother losing one of her kidneys and the son requiring extensive treatment for the rest of his life.  The mother sued the doctor for New York medical malpractice.

The mother actually brought a fascinating argument to the court.  The mother alleged that the son was in trouble and needed a kidney and was a victim.  This made the mother a rescuer because she was trying to save his life.  Obviously, a harm done to a victim will create liability by the wrongdoer.  The law also extends this theory to a wrong committed against the victim is also causing a harm against the rescuer.  Therefore, because the doctor negligently sought the kidney for the son from the mother, and it was not compatible, the doctor was not only harming the son but also the mother—the rescuer. 

However, the court disagreed that the doctor was first, in the wrong, and second, liable to the mother even if the doctor was wrong.  This is an incredibly interesting case with a unique and excellent example of how a plaintiff’s attorney could craft a case.

But what do you think?  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 


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