"Colavito versus New York Organ Donor Network is a case to watch. The plaintiff Robert Colavito suffered from end-stage kidney failure. When his good friend, Peter Lucia, died in New York from intra-cranial bleeding, his widow decided to donate Peter's kidneys to Robert. One of Peter's kidneys was flown to Florida, where Robert was waiting for its implantation. While Robert was being prepped for surgery, the docs discovered that the kidney had been irreparably damaged, and was unusable. When the doctors called the New York Organ Donor Network to ask for delivery of the second kidney, they were told that it had already been implanted in someone else.
Robert sued the Organ Donor Network, its officials, the New York Hospital, and the doctors who allegedly implanted the second kidney into someone else for fraud and conversion. The fraud claims have been dismissed, but what's interesting is the conversion claims (claims that someone exerted unauthorized use or control of someone else's property).
The district court dismissed the entire case, holding that NY public policy prohibits a cause of action for conversion because policy does not allow for a property interest in human corpses.
The Second Circuit, in fairly extensive 2-1 decision, has essentially held that it is not in the position to decide whether New York Law will recognize that Robert Colavito had a property interest in the kidney. It has, thus, certified the question to the New York Court of Appeals. Assuming the Court of Appeals takes the case (it usually does on certified questions) it will have to decide whether New York's Public Health Law 'vests the intended recipient of a directed organ donation with rights that can be vindicated in a private party's lawsuit.'
The decision reveals two interesting facts about the case. First, the litigation revealed that the kidney that Robert did not get turned out to be unusable (it was not implanted in someone else). Second, the donor's family is also suing for fraud, battery, and conversion in the New York State Courts."
Article by Alicia Ouellette