As a Houston attorney who focuses on medical malpractice cases, I have represented hundreds of clients who have lost loved one in hospitals.
It is always hard to lose someone that we love. But when death is unexpected and comes out of the blue, billows of shock accompany the grief sadness and grief that descend on family members.
A number of my clients who went through these circumstances were disturbed—even years later—that they were immediately approached by hospital personnel about donating their loved ones’ organs. Some of them even felt pressured to consent.
No one can dispute that organ donation helps thousands of people each year. Many thousands more are on waiting lists to receive a life-saving organ. But what are the patient and family rights when it comes to organ donation?
Current Texas law allows “opt in” for organ donors
In Texas, individuals can “opt in” as organ donors by registering through the Glenda Dawson Donate Life Texas Registry, or when they renew their driver license or personal identification card. If you register as an organ donor, you are giving legal consent to have you organs removed and donated at the time of your death.
If you register as an organ donor and change your mind, you can call Donate Life Texas, at 1-800-633-6562, to remove yourself from the registry.
If you are a registered organ donor in Texas, your family cannot revoke your authorization or consent at the time of your death.
The beginning of the hospital organ donor process
In order to be eligible for donation, a person must die in a hospital on a ventilator. The ventilator keeps the organs alive, so they could still work if they were removed from the deceased patient.
The most common causes of death that would allow organ donation are stroke or traumatic brain injury, which lead to brain death.
Once a patient is declared brain dead or dead, the hospital and doctors get in touch with an “organ procurement organization,” which comes to the hospital to speak with family members about organ donation.
What is brain death or death, in general?
Many clients who I have represented are not reassured of statements like this, based on their own experiences with their deceased family members. Part of the problem comes from vague standards under Texas law and within the medical community.
Texas Health & Safety Code Section 67.001(a) states that, “A person is dead when, according to ordinary standards of medical practice, there is irreversible cessation of the person’s respiratory and circulatory functions.”
The law does not define what “ordinary standards of medical practice” are, though. That means that it is left up to individual hospitals and doctors to make the call as to whether a patient has irreversible cessation of respiratory and circulatory functions.
Most hospitals use the equally vague concept of “brain death” when speaking to families about making organ donation decisions, terminating life support, entering a DNR (do not resuscitate) order, or pulling the plug.
Brain death is not defined by Texas law and there is significant debate within the medical community of what standards should be used to determine whether a patient is brain dead. A number of Texas facilities, like the University of Texas Medical Branch, in Galveston, use criteria that are currently recommended by the American Academy of Neurology.
Proposed law would automatically make you an organ donor, unless you “opt out”
If things were not already confusing and murky enough in the organ donation arena, Texas state representative Jason Villalba (R-Dallas) filed House Bill 1938 during the current legislative session. If Rep. Villaba’s bill is passed and signed into law, it would result in automatic registration as an organ owner everyone who gets a driver’s license. It would create a standard of “presumed consent.”
Donor Life Texas, the state’s organ and tissue registry, opposes House Bill 1938.
What can you do to prevent organ donation chaos?
If you choose to be an organ donor, consider having a conversation with your loved ones to let them know about, and get comfortable with, your decision. Remember, if you are a registered organ donor, your family cannot override your consent, so it is a good idea for them to be aware of your decision in advance.
What about the situation in which you are faced with the sad situation of being told that your loved one has died in the hospital, and you are asked to consent to donate his or her organs? There are two things to keep in mind.
First, ask the health care providers or organ procurement organization if your loved one had registered as an organ donor. If not, you can be empowered to know that you cannot be bullied into consenting.
Second, make absolutely sure that you are comfortable with the medical diagnosis of death or brain death. Ask the doctors what tests they have done. Ask for a second opinion. If you believe it is appropriate, you can also ask for treatment to continue for some additional time, to see if your loved one’s condition improves. In the end, remember the decision is for you and your family.
We are available to help
If you or someone you care for has been injured from medical malpractice, contact the experienced Texas attorneys at Painter Law Firm, at 281-580-8800, for a free evaluation of your potential case. We have helped numerous clients by investigating the circumstances of their family members’ deaths, including whether all appropriate care was provided before the doctors declared them brain dead.
