Kreisman Law Offices Professional Corporation
Prior to the 1980s, the risk of transmitting HIV through transplanted organs was fairly high, at a time when even blood transfusions put patients at risk for contracting the deadly virus. However, in 1985, HIV antibody testing became available, which enabled doctors and medical staff to test to see whether organs were infected with HIV. Therefore in today’s medical climate it is unlikely that an organ transplant recipient would receive organs infected with HIV.
However, in 2007, four Chicago patients were found to have transmitted HIV by way of their transplanted organs. While the transplant surgeries were done at three different Chicago Hospitals, each of the four patients received organs from the same organ donor. At the time of the transplant surgery the donor was not known to be infected with HIV. His organs passed the standard tests for HIV antibodies; however, those tests could not have detected HIV if the donor acquired the infection within a few weeks of his death.
Critics of the way these 2007 transplant surgeries were handled argue that a nucleic acid test could have detected the HIV infection earlier. However, the nucleic acid test was not approved by the FDA until 2009 and even today is not effective 100 percent of the time; too many false positives make the nucleic acid test unreliable as an universal screening tool.
Instead of focusing on altering laboratory screening methods, more hospitals and health agencies are focusing their attention on changing the way they handle “high risk” organ donors. Currently nearly 1 in 10 organ donors are labeled high risk according to the definition provided by the Centers for Disease Control and Prevention (CDC):
-Men who have had sex with another man in the preceding 5 years.
-Persons who report nonmedical intravenous, intramuscular, or subcutaneous injection of drugs in the preceding 5 years.
-Persons with hemophilia or related clotting disorders who have received human-derived clotting factor concentrates
-Men and women who have engaged in sex in exchange for money or drugs in the preceding 5 years.
-Persons who have had sex in the preceding 12 months with any person described in items 1-4 above or with a person known or suspected to have HIV infection.
-Persons who have been exposed in the preceding 12 months to known or suspected HIV-infected blood through percutaneous inoculation or through contact with an open wound, nonintact skin, or mucous membrane.
-Inmates of correctional systems. (This exclusion is to address issues such as difficulties with informed consent and increased prevalence of HIV in this population.)
If a donor meets any of the above criteria, the CDC recommends that their organs are not used for transplant surgeries regardless of whether or not the donor’s HIV antibody tests were negative. The only time the CDC condones using high risk donor organs is when the risk of not performing the transplant surgery outweigh the potential risks of contracting HIV.
The organ donor who was the cause of the 2007 HIV infection cases was labeled as high risk because he had sex with other men. While new transplant surgery policies now require hospitals and transplant centers to advise organ recipients whether the transplant organs are from a high risk donor, this was not done in the 2007 cases.
The failure of the hospitals to offer this information to the transplant patients has become the basis for at least one transplant surgery malpractice lawsuit filed against the University of Chicago Medical Center, one of the three Chicago hospitals where the infected transplant organs were used. The Illinois medical malpractice lawsuit alleges that the recipient was not told that the kidney she received came from a man who had sex with men, nor were the risks and benefits of receiving this organ explained. As of yet no transplant surgery malpractice lawsuits have been filed against the other two Chicago hospitals, Rush University Medical Center and Northwestern Memorial Hospital.
A recent Archives of Surgery study found that about one third of transplant surgeons have altered their acceptance of high risk organs after the 2007 Chicago infections. Forty-two percent have decreased their use of high risk organ donors, while 34 percent are placing more emphasis on informing transplant patients of the risks, and 17 percent are using more precise methods of testing for HIV antibodies.
And as far as the Chicago hospitals involved in the 2007 events, those cases of HIV infection have caused them to reconsider their use of high-risk organ donors. Rush University Medical Center has decreased its use of high risk donors and ensures that each transplant patient offered high risk organs is thoroughly informed of the risks and benefits. Both the University of Chicago Medical Center and Northwestern Memorial Hospital rule out many but not all high risk donors; rather each high risk organ is considered on a case-by-case basis.
The reason that all high risk organs are not automatically ruled out for possible transplants is that high risk donors help satisfy the great need for transplant organs. Currently over 72,000 Americans are on the waiting list for organs. In 2009, around 6,700 of these transplant patients died because they were unable to get an organ in time to save their life. Also, not all high risk donors necessarily have HIV, rather they are just at a higher risk than the general population for being infected. Therefore, doctors and patients are hesitant to rule out the use of an otherwise healthy organ simply because there is a risk it might be infected.
However, this is a decision that each surgeon and patient should make together, which reinforces the need to inform any patient being offered a high risk organ of all the potential risks and benefits. If there is anything to be learned from the 2007 HIV infection cases it is that patients deserve the right to make the decision when it comes to high risk organs.
Kreisman Law Offices has been handling Chicago transplant malpractice lawsuits and Illinois medical malpractice lawsuits in and around Cook County for more than 35 years, including Oak Lawn, Summit, Melrose Park, and Broadview.
Resources:
Lauren M. Kucirka, ScM; R. Lorie Ros, ScM; Aruna K. Subramanian, MD; Robert A. Montgomery, MD, DPhil; Dorry L. Segev, MD, PhD. “Provider Response to a Rare but Highly Publicized Transmission of HIV Through Solid Organ Transplantation.” Archives of Surgery, Vol. 146 No. 1, January 2011. Pg. 41-45.
Carla K. Johnson. “Study: Many transplant surgeons avoid organs from high-risk donors in ‘exaggerated response’.” The Chicago Tribune. January 17, 2011.
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