Kidney Donor Sues for Malpractice Done to Donee?

Here’s an interesting case that the Nebraska Supreme Court decided yesterday.  Plaintiff volunteers to donate a kidney to his dad.  The doctor removes the plaintiff’s kidney and gives it to the father. Sadly, the father has complications with the kidney, requiring further surgery. According to the plaintiff’s complaint, the doctor mistakenly stitched the renal artery during the father’s exploratory surgery, which leads to the loss of the donated kidney.  Really just a tragedy – son tries to help father, which is how the world should work.  Malpractice or not, it is just a shame.

But here’s the weird part.  Isn’t this Dad’s malpractice claim?  Instead plaintiff – actually plaintiffs, inexplicably his wife was also a plaintiff, filed suit instead of the father.  Defendants, understandably, filed a motion for summary judgment.  The plaintiffs’ response was telling, asking for a continuance to pursue further discovery on whether the doctor-patient relationship existed between the plaintiff and the doctors.  The court granted the defendants’ motion for summary judgment.

So the Nebraska Supreme Court had to decide whether the doctor owes a duty of care to a kidney donor during the post-transplant treatment and care of the donee.  Is this really a question?  I don’t think so, and the Nebraska high court didn’t think so either.  I’m not even sure why I’m blogging about this, except the facts are interesting.  I just wish we had a bad story.  Why didn’t dad sue in his own right?