ORGAN ACCIDENTALLY DISPOSED

Family gets $650,000 in botched kidney case

Organ was thrown away at UTMC

A labeled container and cover will now be used during kidney transplants.

THE BLADE/DAVE ZAPOTOSKY
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A labeled container and cover will now be used during kidney transplants.

The accidental disposal in 2012 of a healthy kidney meant for the donor’s sister will cost the University of Toledo Medical Center a $650,000 settlement with the affected South Toledo family.

Sarah Fudacz, who needed the kidney; her brother, Paul Fudacz, the donor, and their parents, Paul, Sr., and Ellen Fudacz, collectively get the $650,000, according to the April settlement approved Wednesday by the Ohio Court of Claims.

The younger Ms. Fudacz and Mr. Fudacz were awarded $250,000 each while their parents received $150,000. A settlement or jury award could have have been much larger if the botched surgery had occurred in a private hospital rather than a public facility, said Jim Arnold, of James E. Arnold & Associates, the Columbus law firm representing the Fudacz family.

The settlement was restricted by state-imposed limits because the incident happened at a public facility, Mr. Arnold said

“I think they are disappointed the state imposes those types of limitations in these types of cases,” he said. “It goes to the old sovereignty that you can’t sue the king unless the king wants you to, and that’s who the state is in this case.”

The Fudacz parents said neither they nor their children wanted to make a statement.

UTMC, the former Medical College of Ohio, released a written statement but otherwise would not respond to questions on the lawsuit or the settlement.

“The university continues to express our regret and sympathy that this unfortunate incident occurred,” said the statement attributed to Lawrence Burns, UT vice president for external affairs. “We apologize sincerely and have done our best to help those affected move forward.”

While the statement had an apologetic tone, it also said, “Officials also noted that per the agreement, the settlement is not to be construed as an admission of liability.”

“We have worked hard to learn from this incident to improve patient safety at UTMC and have shared those lessons with other transplant programs and hospitals,” the statement said. The result has been a staff of dedicated UTMC employees whose top priority is to ensure that Toledo’s only academic medical center is among the safest in the country.”

The family must pay its own legal fees, which could consume a third of the settlement. Additionally, the settlement requires the Fudacz attorneys to hold $12,040 from the settlement proceeds in an account to reimburse Medicare for its potential expenses in the case. Court costs were assessed against UTMC, the record said.

Ms. Fudacz, who was 24 at the time of the Aug. 10, 2012, kidney-transplant surgery, was supposed to have been given a kidney taken from her younger brother, but the organ was mistakenly thrown away by a nurse after it was removed. Ms. Fudacz, Mr. Fudacz, their parents, and their four siblings sued UTMC in the Court of Claims in Columbus almost a year later.

Economic limit

Court documents dated Wednesday said the court approved and confirmed the settlement agreement and dismissed the case.

“There is an economic limit of $250,000,” Mr. Arnold said. “The short, nonlawyer, explanation is that that is the maximum that each can get. ... I would much rather be in a private institution than a public hospital if you are going to be the victim of a medical negligence claim.”

The 1987 law governing cases such as this at public institutions caps noneconomic damages for harder-to-quantify claims such as pain, suffering, and emotional distress at $250,000 per person. There is no limit on awards for lost wages, medical bills, and other measurable out-of-pocket expenses under either the 1987 public university law or the 2005 medical malpractice law that applies to other cases.

The Fudacz lawsuit did not specify a specific economic damage demand beyond the routine “in excess of $25,000.”

If the Fudacz family had been allowed to sue under the broader 2005 medical malpractice law the damages for their noneconomic claims could have been as much as $500,000 per plaintiff, with the hospital’s total liability for noneconomic damages capped at $1 million.

Continued to work

After the incident, live-donor kidney transplants were suspended voluntarily at UTMC. Several policy and procedure reviews at the medical center and site visits by federal and state medical oversight authorities followed. Dr. Michael Rees, the surgeon who performed the surgery, continued to work at UTMC.

The family’s lawsuit detailed how the surgery went wrong and the aftermath. It listed the plaintiffs Ms. Fudacz; Mr. Fudacz; their parents, Paul Fudacz, Sr., and Ellen Fudacz; Christopher, 26, John, 17, and Joseph, 11, brothers of Sarah and Paul, Jr., and Marie Fudacz, 23, their sister.

The suit said the plaintiffs individually demanded judgment against UTMC in excess of $25,000, plus interest, the costs of the suit, and any other relief the court deemed appropriate.

“Paul, Jr.’s kidney was considered a ‘perfect match’ for Sarah. Sarah seeks damages she has suffered and will continue to suffer due to the loss of Paul, Jr.’s perfect kidney. Paul, Jr., seeks damages he has suffered and will continue to suffer for having to undergo a painful and risky surgery, and for having to live the rest of his life with only one kidney, all in vain,” stated the lawsuit.

The four siblings, who were part of a lawsuit filed against UTMC, were dismissed from the case in November because the court agreed with UTMC’s challenge that they presented no facts to prove their claims of loss of consortium with their sister and brother.

The court, however, ruled Ms. Fudacz’s parents “have alleged sufficient facts to pursue a loss of consortium claim for their adult children, Sarah and Paul, Jr.”

The family’s lawsuit stated that “at approximately 1 p.m., while Paul, Jr., was in the process of being ‘closed’ by Dr. Rees, Judith K. Moore, R.N., a nurse employed by UTMC, returned to Paul, Jr.’s, operating room after taking a lunch break. Nurse Moore removed the contents of the slush machine [which still included Paul, Jr.’s, kidney], walked down the hall to a utility room, and flushed the contents [including Paul, Jr.’s kidney] down a disposal ‘hopper’ used for the disposal of medical waste.”

Travel expenses

Mr. Arnold said UTMC officials were accommodating after the incident, helping to find Ms. Fudacz a new kidney and paying travel expenses to Colorado for that surgery. But the Ohio attorney general’s office, which represents UTMC, was unwilling to accept some of the family’s demands, he said.

Ms. Fudacz eventually received a kidney transplant through a paired donor swap in November at a hospital in Colorado. The new kidney came from a man in Boulder, Colo., whose wife needed a kidney. A Toledo-area man donated his kidney to that woman in Boulder completely altruistically so the husband would then in turn donate a kidney to Ms. Fudacz.

The kidney Ms. Fudacz received on Nov. 13, 2012, is not a perfect match and therefore will not last as long as her brother’s kidney would have. Also, she will have a harder time finding another match when she needs another new kidney.

In the months between the botched transplant surgery and her successful transplant, she endured additional dialysis, four surgeries related to dialysis, and the uncertainty of whether she would find a suitable kidney.

Contact Ignazio Messina at: imessina@theblade.com or 419-724-6171 or on Twitter @IgnazioMessina.