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What If Someone Removes Organs from a Deceased Family Member without Permission?

Dealing with the death of a loved one is an incredibly emotional time. Because it is so sensitive, there are legal remedies that allow members of a decedent’s family to recover for monetary damages if matters are not dealt with properly. One of the remedies is for negligent infliction of mental anguish. What is this? When can a family member recover for it? Lions Eye Bank of Texas v. Perry answers these questions.

Texas Case Law

Lions Eye Bank v. Perry, 56 S.W.3d 872 (Tex. App. 2001)

Facts of the Case:

Levi Perry was jogging when he sustained four gunshot wounds to the head during the course of a robbery. Levi was taken to the hospital where he was pronounced dead upon arrival. At the hospital, Levi Perry, Sr., his father, signed a “Harris County Hospital District Consent for Postmortem Procedures” form, refusing all organ and tissue donation, including eyes and corneal tissue, on the previously expressed desires of Levi.

During the viewing of Levi’s body at the funeral home a few days later, Levi’s sister, Angela Perry, who is an ophthalmologist, noticed that Levi’s eyelids did not look normal. When Angela investigated by prying open Levi’s eyes, she discovered that Levi’s entire eyes had been removed from the sockets and corneal caps had been inserted in place of the eyes.Levi’s eyes were removed without the Perrys’ permission and against Levi’s wishes. An employee of the funeral home told Angela that Levi’s eyes were not present when Levi’s body arrived at the funeral home. Angela concluded the Eye Bank had removed Levi’s eyes.

Eye Bank technician, Gabriel Hernandez, testified that with the permission of the Medical Examiner, he took Levi’s corneal tissue prior to the autopsy, and he did not see anything in the medical records saying that Levi’s family had not consented to the removal of the corneal tissue. The Eye Bank maintains that Hernandez took only the corneal tissue and did not take the eyes in their entirety.The Perrys sued the Eye Bank for negligence, gross negligence, and intentional infliction of emotional distress, and sought mental anguish and punitive damages. At trial, the jury found the Eye Bank had negligently enucleated Levi’s eyes. The jury awarded actual damages for mental anguish to the family. The jury further awarded the Perrys, collectively, $200,000 in exemplary damages on their gross negligence claim. The jury, however, did not find in favor of the Perrys on their claim for intentional infliction of emotional distress. The trial court entered a ruling that aligned with the jury’s verdict.

The Eye Bank appealed asserting a number of claims, the court of appeals focused mainly on if the Perrys were eligible to recover for negligent infliction of mental anguish. The court of appeals found they could not, and they reversed the judgment of the trial court.

What This Case Means:

​​The Eye Bank argued that the Perrys could not recover for the negligent infliction of mental anguish. To prevail on a cause of action for negligence, the Perrys needed to satisfy three elements: (1) a legal duty owed by the defendant to the plaintiff; (2) breach of that duty; and (3) damages were caused by such breach. Whether the Eye Bank owed a duty to the Perrys is a question of law for the court to decide from the particular facts of the case.

In Texas, there is no general legal duty to avoid negligently inflicting mental anguish. While negligently inflicted mental anguish may be an element of recoverable damages when the defendant breaches some other duty, “for many breaches of legal duties, even tortious ones, the law affords no right to recover for resulting mental anguish.” In other words, unless there is a specific kind of legal duty between the party who harmed and the party suing, then the suing party cannot recover for mental anguish. Accordingly, mental anguish damages are recoverable in a limited set of circumstances: (1) the foreseeable result of a breach of duty arising out of certain special relationships; (2) common law torts involving intentional or malicious conduct; and (3) personal injury cases where the defendant’s conduct causes serious bodily injury. The relevant case which would apply here is the first listed. Meaning, the Perrys had to prove the eye bank owed them a certain duty based on the relationship between the eye bank and them The Perry’s contended they could recover mental anguish damages based on a special relationship and as bystanders. They could not recover on either of these

Certain relationships may give rise to a duty, which, if breached, would allow for mental anguish damages; however, there must be a “specific duty of care that, under the law, arises from the relationship.” Most legal and personal relationships do not create a duty to avoid causing mental anguish. “Special relationship” cases have three common elements: (1) a contractual relationship between the parties, (2) a particular susceptibility to emotional distress on the part of the party suing, and (3) the knowledge of the party’s particular susceptibility to the emotional distress based on the circumstances. So, in order for a special relationship to arise, there must be a contract between the parties, a sensitive or emotional circumstance, and the party who owes the duty of care must know that the party they are caring for is in an especially sensitive or emotional position. In this case, the Perrys could not establish the first element of a special relationship giving rise to a duty not to negligently inflict mental anguish because there is no contractual relationship between the Perrys and the Eye Bank.

The Perrys also contended they could recover mental anguish damages as bystanders. Bystanders may recover mental anguish damages suffered as a result of witnessing a serious or fatal accident involving a close family member. To recover as a bystander, the party must establish:

(1) The party was located near the scene of the accident, (2) The party suffered shock as a result of a direct emotional impact upon the plaintiff from a sensory and contemporaneous observance of the accident, as instead of learning about the accident from others after its occurrence; and(3) the party and the victim were closely related. Here, while the Perrys saw the aftermath of the eye enucleation, they were not present while it happened and were unable to witness the actual act that gave rise to their claim.

The court found that the Perry’s were unable to establish all three facts and therefore they could not be considered bystanders. The Perrys could also not provide evidence to show a special relationship existed. For these reasons, the court reversed the decision and found that the Perrys could not recover for negligent infliction of mental anguish.

Presumed consent relies on the claim that there is a basis for a presumption that the deceased would have agreed to donating organs had he or she been asked. Routine salvaging, in contrast, does not assume consent is needed.

Can you take organs from a dead person?

Currently, the United States (US) uses the “donation model”, a consent model for deceased organ recovery that prioritizes the rights of the individual (or of the surrogate decision maker) over the needs of society by requiring authorization or explicit consent prior to deceased organ and tissue recovery.

Can family override organ donation in Texas?

If you have registered that you don’t want to donate any of your organs or tissue, this may not be overruled by a family member.

No. The donor needs to give informed consent.

How does organ donation work?

The donor is taken to an operating room, where organs are surgically removed. After that, the organs are sent to the transplant hospitals where candidates are waiting for them.

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