Did a Kentucky hospital need family permission before using organs a person donated on a driver's license?

Plain-English summary

In 1997, Kentucky's Attorney General said a hospital that knew a person had made a valid anatomical gift, such as by a notation on a driver's license, did not need next-of-kin permission before removing donated organs. The opinion distinguished that situation from one in which the person had made no gift, when it said family consent was required.

The AG also said a donor could revoke a license-recorded gift by carrying a signed revocation card or by requesting a duplicate license. It described good-faith protection under the anatomical-gift law for hospitals, while declining to predict how any particular liability dispute would be decided.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Donors with a license notation

The AG said the donor could carry a signed card revoking the gift. It also read KRS 186.520 as allowing a duplicate license after revocation, treating the original license as legitimately lost or destroyed for that purpose. The duplicate-license answer addressed concern that a license notation might be found at death without the separate revocation card.

Families and hospitals

When a hospital had notice of a valid gift made by the decedent, the AG said it did not have to notify or obtain permission from next of kin before removing the donated organs. It quoted an earlier opinion explaining that waiting for family consent could make an organ unsuitable for transplantation. If the decedent had made no donation, the opinion said family consent was necessary.

Hospitals considering liability

The opinion said a hospital did not incur liability merely by removing organs without next-of-kin permission when that permission was unnecessary. For a hospital that delayed removal while seeking family permission, it described good-faith protection under KRS 311.225(3). It cautioned that knowingly insisting on notice the law did not require would not receive that statutory protection, while any other liability would turn on the facts.

Common questions

How could a Kentucky donor revoke a gift recorded on a driver's license?

The AG said the person could carry a signed revocation card. It also said the person could request a duplicate license under KRS 186.520 after revoking the gift.

Did the hospital have to ask the family before removing organs the person donated?

No, if the hospital had notice of a valid donation by the decedent. The opinion said next-of-kin permission was unnecessary in that situation; it said consent was needed if the decedent had made no gift.

Was a hospital automatically liable if it waited for family permission?

The AG said liability was unlikely when the hospital acted in good faith under the anatomical-gift law. It also said the statutory protection would not cover a hospital that knew family notice was unnecessary but refused to remove a donated organ until notice was given. Other liability depended on the specific facts.

Background and statutory framework

Senator Elizabeth Tori asked four questions under the Uniform Anatomical Gift Act. The AG limited its answer to gifts made by the donor rather than by relatives or another person. It read KRS 311.195 and KRS 186.520 on donation and revocation, quoted KRS 311.175(4) on the donee's rights, and applied KRS 311.225(3)'s good-faith protection. The opinion closed by noting that Kentucky then used the 1968 version of the uniform law.

Citations and references

• KRS 311.195: methods of making and revoking an anatomical gift discussed by the AG.
• KRS 186.520: duplicate license provision applied to a donor's revocation.
• KRS 311.175(4): rights of the donee under a valid gift, quoted from the earlier opinion.
• KRS 311.225(3): good-faith protection for actions under the anatomical-gift law.
• OAG 75-580: earlier opinion quoted on the lack of a next-of-kin consent requirement after a valid donor gift.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_1a1461a3-917f-4b67-a385-47fbb786e6ac/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_1a1461a3-917f-4b67-a385-47fbb786e6ac

Original opinion text

OAG 97-19
June 24, 1997
Subject:

Anatomical gifts

Requested by:

State Senator Elizabeth Tori

Written by:

Ross T. Carter

Syllabus:

(1) When donation of anatomical gift is made by notation on operators license, revocation may be effected by requesting duplicate license or by carrying notice of revocation; (2) if decedent has made valid anatomical donation, notify of next of kin is unnecessary before removing organs; (3) hospitals are protected from liability when acting in good faith under the Uniform Anatomical Gift Act.

Statutes construed:
KRS 311.195; KRS 311.215; KRS 311.225; KRS
186.520
OAGs cited:

OAG 75-580

Opinion of the Attorney General
We have been asked questions regarding the Uniform Anatomical Gift Act, KRS 311.165 to 311.235. From the context of the questions presented, we assume the inquiry to be limited to anatomical gifts made by the donor (rather than next of kin or other person) and not directed to a specific donee.

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The first question involves the revocation procedure applicable
when intent to denote is expressed by a notation on an operators license.
An individual may execute an anatomical gift of all or part of his
body in three ways: by will; by a document other than a will if the document is subscribed by two witnesses; and by a statement on the donor’s operators license. KRS 311.195. A gift may be revoked by “a signed card or document found on his person or in his effects,” or by “destruction, cancellation, or mutilation of the document and all executed copies thereof.” A person who has made an anatomical gift by notation on an operators license may revoke the gift by carrying a signed card to that effect. This procedure might not be sufficiently reassuring to persons who fear that the operators license will be found at time of death but the revocation will not. These persons may request a new operators license under KRS 186.520, which authorizes issuance of a duplicate operators license when the original has been “legitimately lost or destroyed.” We believe that revocation of an anatomical gift qualifies as legitimate loss or destruction of the license. The second question is whether hospitals must notify next of kin before removing donated organs. If the hospital has notice of a donation made by the decedent, such as a notation on an operators license, the answer is no. We said in OAG 75-580, To implement the intent of the legislature we are compelled to conclude that because the time consumed in obtaining the consent of the next of kin may render the organ unsuitable for transplantation, their consent is not necessary if the part was legally donated under KRS 311.175(4). Of course, if the decedent did not previously donate his body or a part of it, the consent of his next of kin must be obtained despite any medical considerations. The subsection referred to, KRS 311.175(4), says, “The rights of the donee created by the gift are paramount to the rights of others except

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as provided by subsection (4) of KRS 311.225 [dealing with
autopsies].”
The third question is whether a hospital could be liable for removing organs without permission from the next of kin. Because the hospital does not need to obtain permission from the next of kin, the answer to this question is no. This answer is qualified with the observation that we cannot predict fact patterns, judicial rulings, or jury awards. We can only say what the law is; we cannot ordain how the law will be applied. The fourth question is whether a hospital could be liable to a potential organ recipient if the hospital waits to obtain permission from the next of kin and the delay renders the organ unusable. Liability is unlikely in light of KRS 311.225(3), which says, A person who acts in good faith in accord with the terms of KRS 311.165 to 311.235 or with the anatomical gift laws of another state is not liable for damages in any civil action or subject to prosecution in any criminal proceedings for his act. The official commentary to the uniform act says, The entire section 7 [codified in Kentucky as KRS 311.125] merits genuinely liberal interpretation to effectuate the purpose and intent of the Uniform Act, that is, to encourage and facilitate the important and ever increasing need for human tissue and organs for medical research, education and therapy, including transplantation. 8A Uniform Laws Annotated p 125 (West 1993). If a hospital notifies next of kin because it believes such notice to be required by law, KRS 311.125(4) should operate to protect the hospital from liability. If the hospital knows that such notice is not required and yet refuses to remove a donated organ until the notice is

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given, KRS 311.125(4) would not provide protection from liability.
Whether other circumstances would make the hospital liable in damages depends on the unique facts of the situation. We note in closing that Kentucky has adopted the 1968 version of the uniform law. The 1987 version of the uniform act, adopted by nineteen states, clears up some uncertainties in the original legislation. Albert B. Chandler III Attorney General

Ross T. Carter
Assistant Attorney General