The Nebraska Supreme Court has held that the doctor for a kidney donee does not owe a duty to the kidney donor. Thus, when the donee's doctor allegedly committed malpractice when treating the donee, rendering the donor's kidney useless, the donor cannot sue the donor's doctor.
In Olson v. Wren shall, 284 Neb.445 (Oct. 5, 2012), Sean Olson agreed to give a kidney to his dad, Daniel. The initial surgery went fine, but complications later developed. Allegedly, a medical error caused the death of the donor's kidney in the do nee and it had to be removed.
The donor and his wife sued the Donne's doctors, seeking damages for the errors committed on do nee that resulted in the loss of the donor's kidney. The trial court dismissed the case, finding that the Donne's doctors (who did not remove the kidney from donor) did not owe a duty a care to the donor. The trial court also ruled that no legally cognizable damages were suffered by donor and his wife as a result of the alleged malpractice.
The Nebraska Supreme Court agreed with the trial court's ruling on the duty issue, citing opinions in two other states that reached the same result. The Court declined to reach the damages issue.
Plaintiffs were pushing the legal envelope in this case. It is tragic that this young man unselfishly gave a kidney to his father, only to see that kidney destroyed as a result of an alleged medical error. Hopefully, his father will be able to get another kidney and see his life extended.
The case reminds us that duty is the threshold issue in every case. In the run-of-the-mill case, duty is rarely thought about - it is so automatic that it is not on the radar screen. But the fact remains that if defendant does not owe plaintiff a duty there is no case.
For the leading case on duty analysis in Tennessee, read Burroughs v. McGee, 118 S.W.3d 323 (Tenn. 2003).