Court Rejects Theory of Unwitting Organ Donor

     ALBANY, N.Y. (CN) – New York may have erred in listing a woman as an organ donor, but the negligence carried no liability, a state appeals court ruled Thursday.
     Margaret Lanza died within weeks of renewing her driver’s license in 2009.
     Though the Health Department mailed the Bronx woman a letter regarding her enrollment in New York’s Donor Life Registry on Aug. 24 – the date her new license took effect – Lanza suffered a fatal heart attack before the letter arrived.
     A day after Lanza’s death, her daughter Jo Drever received a thank-you phone call from an organ-donor network.
     Drever told media outlets at the time this was the first notice she received that her mother’s eyes, soft tissue and organs had been harvested.
     Insisting that Lanza never consented to be an organ donor, Drever filed suit.
     The New York Department of Motor Vehicles contends that the renewal form Lanza had submitted on Aug. 5 had a straight line drawn through the signature space in the organ-donor consent box.
     DMV workers interpreted that as consent to put Lanza’s name on the donor registry, but Drever says her mother’s application did not have a line drawn in the consent box when she mailed it out.
     Drever sued the state in the Court of Claims in 2010, seeking punitive damages for, among other things, negligence and interference with her common-law right of sepulcher – possession of her mother’s body for preservation and burial.
     The Court of Claims rejected the state’s immunity defense, ruling in March 2014 that the alleged negligence stemmed from its performance of a proprietary function, not a governmental one. The court also found for Drever on the issue of liability for interfering with her right of sepulcher.
     On Thursday, the Appellate Division’s Third Department in Albany reversed that decision.
     “The donor registry and enrollment program at issue here is analogous to other public health measures that have been deemed to be governmental functions,” Presiding Justice Karen Peters wrote for the four-judge panel.
     Precedent maintains that a “governmental entity’s conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions,” the ruling states.
     On one side of the spectrum are “purely governmental functions” – under the umbrella of general police powers that serve to protect the public, such as fire and police departments. On the other end are “proprietary functions in which governmental activities essentially substitute for or supplement traditionally private enterprises,” such as owning property and serving as a landlord, Peters wrote.
     Peters said governments generally enjoy immunity from negligence in carrying out the former functions, unless a “special relationship” exists between the government and the injured party.
     Proprietary functions, though, subject governments “to suit under the ordinary rules of negligence applicable to nongovernmental parties,” Peters noted.
     States began to get involved in securing organ donations after the Uniform Anatomical Gift Act took effect in 1968.
     New York, which has had a low donor rate, sought to encourage organ donation through sign-ups through the Department of Health, through DMV driver’s licensing, and through voter-registration forms at local Boards of Elections.
     Thursday’s ruling notes that some 95 percent of enrollments in the state’s Donate Life Registry have been secured through the DMV; another 2 percent came from other governmental sources.
     “By establishing the Donate Life Registry and facilitating the identification of organ and tissue donors and the making of anatomical gifts through DMV applications and renewals, defendant is protecting and promoting the health and welfare of the public through the exercise of its general police powers,” Peters wrote.
     As a result, such enrollment efforts constituted a governmental function, the judges said.
     Because the state owed Lanza no special duty – and her daughter claimed none – the panel found governmental immunity existed. As a result, Drever’s sepulcher claim should have been dismissed, they said.
     Justices John Lahtinen, Elizabeth Garry and Robert Rose concurred.
     The Department of Health estimates that more than 10,000 New Yorkers are on waiting lists for organ donations because need far exceeds supply.

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