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A Scary Estate Planning Story For Halloween
Posted by Dave on October 28, 2020
It’s Halloween once again and although the estate planning attorneys at Sheffield Law Office, PLLC like a good campfire story as much as anybody, we prefer to keep the fright to the realm of fiction. On the other hand, a recent decision from the Arizona Court of Appeals tells an all-too-real story that reminded us how scary it can be to leave your final wishes unclear. The case is Tune vs. Donor Network of Arizona, 1 CA-CV 19-0336, and in September, 2020, Division One decided that the agency responsible for collecting donated organs and parts is legally protected when they collect from people without their consent and against the wishes of their family. It’s a good example of how valuable it can be to put your final wishes in writing with an estate plan.
Christopher Tune had a motorcycle accident in July of 2016. He was brought to the hospital but they could not save Christopher’s life. Following protocol, the staff at the hospital notified Donor Network of Arizona. Donor Network of Arizona, better known as “Donate Life AZ,” is Arizona’s only federally approved “organ procurement organization.” When a person or their family has consented to an anatomical gift, Donor Network of Arizona is called in to collect the organs or tissues from the dead body and preserve and transport them for later use in transplants. In order to keep track of who has consented, Donor Network of Arizona maintains a computer database known as the DonateLifeAZ Registry. When Donor Network checked the registry, they found Christopher’s name on their list of approved donors. It’s a good idea to be clear about organ donation in your living will, advance medical directive, or other estate planning documents but in Christopher’s case, his name had been added by someone at the Arizona Motor Vehicle Division.
This news came as a shock to Christopher’s parents, Frank and Diane Tune, who assured representatives from Donor Network of Arizona that Christopher had never agreed to be an organ donor and would have wanted his body left intact. Arizona’s organ donation law is a version of the Uniform Anatomical Gift Act, which all 50 states use in some form. Under Arizona’s organ donation law, when an adult has agreed to be a donor, that decision is final and the wishes of their family cannot change it. Time can be a critical factor in organ donations because some tissues degrade very quickly after death and therefore must be collected from a body very quickly if they are to be used for transplants. For example, a person’s corneas must typically be collected within 24 hours of their death. And so, with the clock ticking and relying on their database, Donor Network took Christopher’s corneas about 15 hours after he passed away.
The following morning, Donor Network checked in with the Arizona Motor Vehicle Division (“MVD”) to ask them to verify that Christopher agreed to be a donor. The MVD replied that their records indicated that Christopher had not agreed. The most likely explanation for how Christopher’s name came to be in the Registry when he had never agreed to list it there is human error at the MVD as part of updating their lists.
When Donor Network discovered that they had taken Christopher’s corneas without his (or anyone else’s) consent, they returned them to his parents and his body was cremated with them. Christopher’s parents were extremely upset and responded with a lawsuit seeking compensation. Donor Network argued that they had legal immunity and thus could not be sued for their mistake. The trial court agreed with Donor Network and dismissed the case. Mr. and Mrs. Tune appealed and the appeals court announced its decision a few weeks ago.
Arizona’s version of the Uniform Anatomical Gift Act is located in Title 36, sections 36-841 through 36-864 and it contains these terms:
"A person is not subject to civil liability, criminal prosecution or administrative proceedings for good faith acts or omissions related to procurement of parts in compliance with this article. All acts and omissions are presumed to be in good faith unless the acts or omissions are done with intent to maliciously cause injury." --A.R.S. Section 36-856(A)
In other words, someone who makes a mistake, even a reckless mistake, in the process of collecting organs or parts from a dead body is protected from all forms of legal consequences. Because the Tunes could not prove that Donor Network had been deliberately trying to cause them distress, the court ruled, their lawsuit had to be dismissed.
It’s impossible to say for sure, of course, but it is likely that if Christopher had created a living will which clearly stated his wishes about organ donation, the hospital and the donor agency would have followed the directions in his document and spared everyone the indignity that occurred in this case. Mortality may be a fact of life but with proper estate planning, uncertainty about the deceased’s wishes doesn’t have to be.
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