164 Wash. 2d 640 | Wash. | 2008
¶1 This case presents the issue of whether a person who makes an undesignated anatomical gift by signing an organ donor card authorizes only a hospital to accept such a gift. We hold that the former Washington Uniform Anatomical Gift Act (WAGA), RCW 68.50.520-.620 (1993), repealed by Laws of 2008, ch. 139, § 31, RCW 68.50-.901-.903, allows only hospitals to accept an undesignated anatomical gift. Furthermore, we hold that while the WAGA does not provide a statutory cause of action, unauthorized use of an organ is actionable under common law theories of recovery.
STATEMENT OF FACTS
¶2 Jesse Smith unexpectedly died of heart problems shortly after his 21st birthday. Shortly before he died, Jesse had renewed his driver’s license and signed an attached card indicating his intent to make an anatomical gift of his organs. The card did not ask him to designate a donee for such a gift. Clerk’s Papers (CP) at 268-69.
¶3 Given the suddenness of death, Jesse’s body was sent to the King County Medical Examiner for an autopsy. At the time of the autopsy, the medical examiner apparently had not determined if Jesse made an anatomical gift of any kind.
¶4 Pursuant to agreement, the medical examiner shared its autopsy information with the Stanley Medical Research Institute (SMRI), a nonprofit organization located in Maryland and dedicated to supporting research of certain brain disorders. SMRI procures brain tissue for research at various facilities. The agreement between the King County Medical Examiner and SMRI (collectively Respondents)
¶5 On the day that Jesse died, Dr. Haikal called Jesse’s mother, Nancy Adams, to ask for permission to take Jesse’s brain tissue for research purposes. The parties dispute the nature of this conversation. According to Adams, Dr. Haikal requested a small sample of Jesse’s brain tissue for research.
¶6 The medical examiner performed the autopsy the next day. During the autopsy, the medical examiner removed Jesse’s brain along with his other organs for measurement. All the organs were replaced except for the brain, which was retained in whole and sent to SMRI. SMRI also collected tissue from Jesse’s spleen and liver as well as blood and cerebral fluid samples for related research on the brain. The autopsy report stated that “[t]he brain ... is donated to the Stanley Foundation by the family’s permission for neuropathological research.” CP at 274. Adams made no inquiry about the autopsy.
¶7 Over a year later, Adams learned through a Seattle television news report about SMRI’s procurement activities
¶8 Adams filed suit against Respondents in 2006, claiming a violation of the WAGA as well as tortious interference with a dead body, invasion of privacy, conspiracy, and fraud, among other claims.
ANALYSIS
I
¶9 This court reviews an order granting summary judgment de novo. City of Seattle v. Mighty Movers, Inc., 152 Wn.2d 343, 348, 96 P.3d 979 (2004). Under CR 56(c), a court may grant summary judgment if the record presents no genuine issue of material fact and the law entitles the moving party to judgment. Id. “In conducting this inquiry, this court must view all facts and reasonable inferences in the light most favorable to the nonmoving party.” Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Such facts must move beyond mere speculative and argumentative assertions. Retired Pub. Employees Council of Wash. v. Charles, 148 Wn.2d 602, 612-13, 62 P.3d 470 (2003). The court should grant summary judgment “only if reasonable persons could reach but one conclusion.” Id. at 613.
¶10 The issue for review requires us to determine the scope of Jesse’s anatomical gift. The parties agree that if the WAGA effectively authorized SMRI to accept Jesse’s gift, then Adams has no cause of action against Respondents. Br. of Appellant at 28. Alternatively, if Respondents violated the WAGA, then we must consider Adams’s theories of liability.
A
¶11 The WAGA authorizes a qualifying donee to accept an anatomical gift for certain purposes. The donor can make such a gift simply by signing an organ donor card attached to a driver’s license form. Former RCW 68.50-.540(3) (2003). A gift becomes irrevocable upon the death of the donor. Former RCW 68.50.540(8).
¶12 The WAGA limits the donees who may accept an anatomical gift and limits the purpose for which a gift may be made:
(1) The following persons may become donees of anatomical gifts for the purposes stated:
(a) A hospital, physician, surgeon, or procurement organization for transplantation, therapy, medical or dental education, research, or advancement of medical or dental science;
(b) An accredited medical or dental school, college, or university for education, research, or advancement of medical or dental science; or
(c) A designated individual for transplantation or therapy needed by that individual.
(2) An anatomical gift may be made to a designated donee or without designating a donee. If a donee is not designated or if*649 the donee is not available or rejects the anatomical gift, the anatomical gift may be accepted by any hospital.
Former RCW 68.50.570 (1993) (emphasis added). While subsection (1) lists all qualifying donees who may accept a gift, subsection (2) expressly authorizes only hospitals to accept such an undesignated anatomical gift.
¶13 In this case, Jesse indicated his intent to make an anatomical gift of any organ but did not designate a donee for such a gift. The donor card signed by Jesse simply provided: “I hereby make an anatomical gift to take effect upon my death. I give: [x] Any organ [ ] Specifically _.”
¶14 Respondents do not claim that SMRI is a hospital. Instead, they claim that Jesse’s undesignated gift permitted any qualifying donee, including SMRI, to receive his gift.
¶15 The canons of statutory construction do not permit such an interpretation. This court recognizes that “[o] missions are deemed to be exclusions.” In re Det. of Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002) (“Under expressio unius est exclusio alterius, ... to express one thing in a statute implies the exclusion of the other.”); State v. Delgado, 148 Wn.2d 723, 729, 63 P.3d 792 (2003). Hospitals are one of several qualifying donees under subsection (1), but hospitals are the only donee listed in subsection (2) as authorized to accept an undesignated gift. If the legislature did not intend to limit undesignated gifts to hospitals, then we assume that subsection (2) would have stated that any qualifying donee could accept such gifts.
¶16 Respondents further claim that subsection (2) applies only when a person dies in a hospital and it does not limit the ability of other donees to accept gifts procured outside of a hospital. While subsections (1) and (2) do not mention anything about the place of death as determining the scope of the gift, Respondents look to the history of the Uniform Anatomical Gift Act (UAGA), 8A U.L.A.
¶17 Our interpretation that undesignated anatomical gifts are limited to hospitals is consistent with the primary purpose of the WAGA to increase the number of anatomical gifts for donation. Former RCW 68.50.520 (1993). In enacting the WAGA, the legislature specifically declared that the demand for organs and body parts exceeded the supply for transplant. Former RCW 68.50.520(1). Although the WAGA goes on to permit donors to make an anatomical gift for purposes of research and medical education, the legislature did not acknowledge these purposes in its findings. Therefore, it makes sense that the legislature would direct undesignated gifts to a hospital, which could determine if there was a need for such an organ or body part for transplantation. If undesignated gifts were not directed to hospitals, then any donee could accept such a gift for any authorized purpose, without first determining if the organ could be used for transplantation.
¶18 Consistent with the legislative findings, we assume that one who makes an anatomical gift contemplates that
B
¶19 Apart from their reliance on Jesse’s own anatomical gift, Respondents argue that they obtained Adams’s consent to remove the brain. The WAGA instructs that an anatomical gift made by the donor does not limit the ability of an authorized person to make a further gift after the donor’s death. Former RCW 68.50.540(10). Specifically, the WAGA authorizes a parent to make an anatomical gift of a child’s body if the child has not expressly refused to make such a gift and has died without a spouse or issue. Former RCW 68.50.550(l)(e).
¶20 Respondents attempted to secure Adams’s consent as Jesse’s next of kin. Under former RCW 68.50-.550(l)(e), Adams could have made a valid anatomical gift to SMRI at that time. Of course, Adams alleges that she did not donate Jesse’s entire brain or other organs to SMRI, which presents the critical question of fact in this case to be determined at trial. See Sattler v. Nw. Tissue Ctr., 110 Wn. App. 689, 701, 42 P.3d 440 (2002) (reversing summary judgment because scope of consent to remove organ presented a question of material fact).
Ill
¶21 Having determined that Jesse’s undesignated gift did not authorize SMRI to remove his brain, we must address Adams’s theories of liability for the alleged unau
A
¶22 Adams claims that the WAGA provides a cause of action for violation of its terms. While the WAGA does not expressly create a civil remedy, Adams argues that it implies a remedy from the various provisions protecting the choice of the decedent and family members to make an anatomical gift. Respondents counter that implying a cause of action does not serve the purpose of the WAGA because it was not created to benefit family members of decedents.
¶23 This court will imply a statutory cause of action under a three-prong test:
[F]irst, whether the plaintiff is within the class for whose “especial” benefit the statute was enacted; second, whether legislative intent, explicitly or implicitly, supports creating or denying a remedy; and third, whether implying a remedy is consistent with the underlying purpose of the legislation.
Bennett v. Hardy, 113 Wn.2d 912, 920-21, 784 P.2d 1258 (1990). In Bennett, this court recognized that the implied cause of action is premised on the assumption that the legislature would not specifically grant rights to a class of persons “without enabling members of that class to enforce those rights.” Id. at 921. Therefore, we must determine whether the WAGA specifically granted a right for family members to authorize the donation of a body part or organ of the deceased that would require us to imply a remedy protecting such a right.
¶25 As to the first Bennett prong, this court “look[s] to the language of the statute to ascertain whether the plaintiff is a member of the protected class.” Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 475, 951 P.2d 749 (1998). The WAGA does not specifically benefit family members of organ donors. The legislature enacted the WAGA in order “to provide a program that will increase the number of anatomical gifts available for donation.” Former RCW 68.50.520(4). Consistent with this purpose, the WAGA established procedures to facilitate the procurement of anatomical gifts. These procedures require potential donees to obtain the family’s consent where the deceased had not made a gift before death. Former RCW 68.50.550. However, the WAGA does not create the family members’ right to authorize a gift. Family members have the right to control the disposal of the body of a deceased relative where the deceased has not made prearrangements for disposal. RCW 68.50.160(3). Furthermore, family members derive an interest in the proper treatment of the body of a deceased relative under the common law, which as discussed below provides its own remedies to protect such a recognized interest. Therefore, the WAGA’s procedures required to
¶26 Adams claims that the legislature intended to protect the interests of all who are involved in the donation process. She relies on Tyner v. Department of Social & Health Services, 141 Wn.2d 68, 79, 1 P.3d 1148 (2000), in which this court recognized that the State’s duty to investigate child abuse under RCW 26.44.050 created an implied cause of action for parents under investigation. In that case, the parties agreed that the statute specifically benefited child victims of abuse. Id. at 77. The issue was whether that benefit extended to the entire family unit in order to meet the Bennett analysis. Under the statute at issue, the legislature recognized the “ ‘paramount importance’ ” of the parent-child relationship “ ‘and any intervention into the life of a child is also an intervention into the life of the parent.’ ” Id. at 78 (quoting RCW 26.44.010). This legislative finding led the court to conclude that the benefit extended to protect the interests of parents from unwarranted separation from their children.
¶27 Unlike the statute at issue in Tyner, the WAGA creates procedures for the procurement of organs, not for the protection of persons who donate organs. While the legislative purpose of the WAGA declares that “[d]iscretion and sensitivity must be used in discussion and requests for anatomical gifts,” former RCW 68.50.520(4), such language does not create a specific right or benefit like the kind in Tyner.
¶28 The second and third Bennett prongs also fail. As noted above, the legislature created the WAGA to increase the procurement of anatomical gifts. The legislature even provided immunity for anyone who complies with the WAGA or attempts to comply in good faith. Former RCW 68.50.620(3) (1993). Establishing good faith immunity serves the legislative purpose by encouraging potential
¶29 Adams argues that the good faith immunity actually indicates that the legislature implicitly recognized liability for all bad faith violations of the WAGA. However, if the legislature had intended to provide a remedy under the WAGA, it would have expressly created the liability to which the immunity corresponds. Furthermore, as Respondents point out, the comment to the revised UAGA of 2006 recognizes that “if a person acts in subjective ‘bad faith,’the common law provides remedies.” UAGA § 18 cmt., 8A U.L.A. 27, 70 (2006) (Supp. 2008). In this case, Adams has raised several common law claims against Respondents for the failure to obtain her consent. These claims are based on her asserted interest in Jesse’s body, not on the WAGA.
B
¶30 Adams’s complaint raised a cause of action titled “Tortious Interference with a Dead Body Restatement (Second) of Torts § 868 [1979].” CP at 193-94. This court has never adopted that section of the Restatement. However, this court has recognized a common law action for tortious interference with a dead body. See Wright v. Beardsley, 46 Wash. 16, 20, 89 P. 172 (1907); Gadbury v. Bleitz, 133 Wash. 134, 136, 233 P. 299 (1925). We recently affirmed the viability of the tort in Reid v. Pierce County, 136 Wn.2d 195, 207, 961 P.2d 333 (1998) (citing Wright and Gadbury). Respondents argue that Adams did not plead a common law claim and therefore this action should be dismissed. See Amaker, 479 F. Supp. 2d at 1163-64. Adams claims that the cause of action includes both the Restatement and the common law claims.
¶31 The complaint properly raised a claim under the common law action for tortious interference with a dead body. Our state rules of civil procedure merely require that
¶32 The complaint in this case gave sufficient notice to Respondents of the nature of the claim brought against them. The only difference pointed out by Respondents between the common law action and the Restatement is that the Restatement permits liability for negligence, whereas the common law requires willful conduct.
¶33 The tort of interference with a dead body allows recovery for mental suffering derived from the willful misuse of a body. Gadbury, 133 Wash, at 136 (“[I]f [mental] suffering is the direct result of a wilful wrong as distinguished from one that is merely negligent, then there may be a recovery.”). The action is not based on a property interest in the body itself, but rather an interest in the proper treatment of the body. See Herzl Congregation v. Robinson, 142 Wash. 469, 471, 253 P. 654 (1927) (recognizing generally that “there is a right of custody over, and interest in, a dead body, and the disposal of the body”); Wright, 46 Wash, at 19 (“the action is for a wrong against the feelings of the plaintiffs inflicted by a wrongful and improper burial of their dead”). The interest extends to relatives of the deceased and those who control the right to dispose of the body. See Gadbury, 133 Wash, at 139 (“those persons who by relationship have a peculiar interest in seeing that the last sad rites are properly given the deceased may maintain the action”); RCW 68.50.160(3).
¶34 While the parameters of the misuse that gives rise to a cause of action for tortious interference might be difficult to grasp firmly,
f 35 This court first recognized an actionable claim of the tort for an improper burial in Wright, where an undertaker
¶36 Later, in Gadbury, this court upheld a claim where an undertaker withheld a body from the mother of the deceased as collateral for payment of funeral expenses. 133 Wash. 134. While the court noted that a party cannot recover for mental suffering based solely on a claim of negligence, it held that intentionally withholding the proper burial of a body constituted a willful misuse of the body. Id. at 137. The court determined that willful delay in providing a burial was equivalent to the improper burial at issue in Wright for purposes of the tort. Id. Like Wright, the court focused on the emotional effect of the treatment of the corpse rather than the extent of misuse. Id. at 137-38 (“The misuse in one case may be greater in degree, but nevertheless it is a misuse.”); see Wright, 46 Wash, at 20.
¶37 We believe that the unauthorized removal of a brain for use in scientific research involves the same kind of interference that causes mental suffering as would an improper burial or use of a body as collateral for payment of a debt. The permanent removal of the entire brain certainly can be considered a mutilation of the body. Furthermore, as mother of the deceased, Adams falls within the recognized category of plaintiff who can maintain a claim for mental suffering from such misuse. See Wright, 46 Wash, at 20
138 Respondents argue that the interference with Jesse’s body was proper because the medical examiner has authority to remove organs while conducting an autopsy. RCW 68.50.106. However, such authority does not imply that the medical examiner has authority to retain the brain and merely return a veritable shell of the skull to the family for burial, absent some compelling reason for further examination. Here, the medical examiner found no abnormality in the brain and gave it to SMRI for its own private research. These facts clearly support an action for mental suffering based on the alleged misuse of a body.
139 We hold that Adams has raised an actionable claim for tortious interference with a dead body. Of course, Adams still must prove the elements of this tort at trial and our opinion does not determine the satisfaction of any of such elements as a matter of law. Furthermore, the extent of injury presents a question of fact outside the scope of our review on summary judgment. See Gadbury, 133 Wash, at 138.
C
140 Adams claims that Respondents conspired to procure Jesse’s body tissue without Jesse’s or Adams’s consent. “A conspiracy is a combination of two or more persons who contrive to commit a criminal or unlawful act, or to commit a lawful act for criminal or unlawful purposes.” John Davis & Co. v. Cedar Glen # Four, Inc., 75 Wn.2d 214, 223, 450 P.2d 166 (1969).
141 In this case, Respondents agreed to procure organs and body parts to be used for medical research. CP at 252-57. While such an underlying agreement was not itself illegal, Adams alleges that Respondents agreed to procure Jesse’s brain without Adams’s consent. The pro
D
¶42 Adams claims that Respondents invaded her privacy interests by turning over Jesse’s body tissue and confidential records to SMRI. This court has adopted the Restatement (Second) of Torts § 652D (1977), recognizing a cause of action for invasion of privacy. Reid, 136 Wn.2d at 212-13. The tort premises liability on the publication of a private matter that would be highly offensive to a reasonable person and is not a legitimate concern to the public. Id. at 210.
¶43 In Reid, this court held that relatives of a deceased person have a privacy interest in the autopsy photos of the deceased. Id. at 212. The court reasoned that the autopsy photos were part of the intimate details of the relatives’ lives in maintaining the dignity of the deceased. Id. at 210, 212. The court found support for this protection in the public policy expressed by the legislature to require that autopsy reports remain confidential. Id. at 210-11; RCW 68.50.105.
¶44 Adams’s claim fails to allege any publication of private matters. While Reid supports Adams’s claim that she has a privacy interest in Jesse’s autopsy records, she does not allege that such records were published. Respondents entered into an agreement to share autopsy records, in which SMRI agreed to abide by all state privacy and confidentiality laws applicable to the medical examiner. CP at 256. Adams does not assert that SMRI breached such confidentiality. While a research facility may eventually have assimilated its research of Jesse’s brain into data as part of a scientific publication, such filtered information likely would no longer contain any recognizable private
E
¶45 Adams claims that Respondents fraudulently obtained her consent to remove Jesse’s organs. Fraud must be pleaded with particularity. CR 9(b). Particularity requires that the pleading apprise the defendant of the facts that give rise to the allegation of fraud. See Pedersen v. Bibioff, 64 Wn. App. 710, 721, 828 P.2d 1113 (1992); Harstad v. Frol, 41 Wn. App. 294, 301-02, 704 P.2d 638 (1985). Respondents do not argue that Adams’s claim of fraud is lacking particularity, but instead argue that any alleged misstatements made to Adams were irrelevant because Jesse gave an unrestricted gift. While we reject such a defense, we hold that Adams has failed to make a facial claim of fraud.
¶46 The elements of fraud include
(1) representation of an existing fact; (2) materiality; (3) falsity; (4) the speaker’s knowledge of its falsity; (5) intent of the speaker that it should be acted upon by the plaintiff; (6) plaintiff’s ignorance of its falsity; (7) plaintiff’s reliance on the truth of the representation; (8) plaintiff’s right to rely upon it; and (9) damages suffered by the plaintiff.
Stiley v. Block, 130 Wn.2d 486, 505, 925 P.2d 194 (1996). Adams does not allege the misrepresentation of an existing fact. Instead, she claims that Respondents fraudulently represented their intent to take a sample of Jesse’s brain tissue in attempting to obtain her consent. However, a false promise does not constitute the representation of an existing fact. Id. at 505-06 (holding that “a promise of future performance [is] not a representation of existing fact”).
¶48 The real issue in this case is the scope of Adams’s consent, not the fraudulent inducement to obtain her consent. Regardless of whether Respondents actually intended to take a sample or the entire brain, Adams consented to donate a sample of Jesse’s brain tissue. While these facts support an action under other theories of recovery, Respondents did not commit fraud if they exceeded the scope of her consent.
CONCLUSION
¶49 We hold that the WAGA did not authorize SMRI to accept Jesse’s undesignated anatomical gift. However, we affirm the order for summary judgment on Adams’s claims for violation of the WAGA, fraud, and invasion of privacy. We reverse and remand on the remaining claims of tortious interference with a dead body and conspiracy.
While Jesse had no diagnosed brain disorder, SMRI apparently procured normal brain tissue for research.
Matthew Adams agreed to dismissal of all of his claims against Respondents. The parties also agreed to dismiss all claims against Dr. Torrey.
The trial court did not provide reasons for its order of summary judgment, and the hearing on the motion for summary judgment apparently was not transcribed. See Resp’ts’ Answering Br. at 11. Therefore, we assume that the court granted summary judgment both on grounds that Respondents complied with the WAGA and that Adams’s claims for relief were legally deficient under CR 56(c).
Adams contends that Jesse’s donor card indicated the donation of only his organs and therefore did not authorize Respondents to take any blood and cerebral fluid samples. The WAGA defines an “ ‘[a]natomical gift’ ” as “a donation of all or part of a human body.” Former RCW 68.50.530(1) (2003). A “ ‘[p]arf ” is defined as “an organ, tissue, eye, bone, artery, blood, fluid, or other portion of a human body.” Former RCW 68.50.530(7). As “organ” is listed separately from “blood” and “fluid,” Jesse’s gift of any organ technically did not include blood or fluid samples. However, the facts are undisputed that the blood and fluid samples were taken as part of SMRI’s research on the brain. CP at 224-25. If Jesse made a valid gift of his organs to SMRI for the purpose of medical research, then such a gift would reasonably include the incidental extraction of blood and fluid samples.
Adams argues that Respondents should be estopped from asserting that Jesse’s anatomical gift authorized them to remove his brain because they did not know Jesse had made the gift at the time they removed his brain. Adams claims that Respondents relied on only her consent as authority for the gift at the time they removed the brain. However, an anatomical gift made by the donor is
For example, New Mexico’s and Arizona’s codification of their anatomical gift acts identify procurement organizations as appropriate donees for organs. N.M. Stat. Ann. § 24-6B-ll(G)(3) (Supp. 2008) (“if the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ”); Araz. Rev. Stat. Ann. § 36-850(G)(3) (Supp. 2007) (same).
The UAGA originally was created in 1968. UAGA, 8A U.L.A. 69 (1968). It was revised in 1987 and 2006. UAGA, 8A U.L.A. 3 (1987); 8A U.L.A. 27 (2006) (Supp. 2008). Washington adopted the 1987 revision of the UAGA. See former RCW 68.50.520 (1993).
The WAGA also provides immunity for a “hospital, physician, surgeon, coroner, medical examiner,... or other person” who “attempts” to act in accordance with the WAGA in good faith. Former ROW 68.50.620(3) (1993) (emphasis added). Respondents may have a valid defense that they attempted to comply with the WAGA. While Respondents did raise the good faith immunity defense in their amended answer, they do not directly argue on appeal that they made a good faith attempt to comply with the WAGA. Such an issue presents a question of fact beyond the scope of our review. See Sattler, 110 Wn. App. at 701.
Adams also argues that this court should adopt the Restatement, presumably to include claims of negligence. However, this court has rejected a claim of negligent misuse because recovery is premised on mental suffering. Gadbury, 133 Wash, at 136 (“[I]f [mental] suffering is the direct result of a wilful wrong as distinguished from one that is merely negligent, then there may be a recovery.”). Adams has not demonstrated why the facts of this case warrant extension of the tort to cover negligent conduct. Furthermore, negligence claims likely would be covered under the WAGA’s immunity provision for attempting to comply with the WAGAin good faith. See Ramirez v. Health Partners of S. Ariz., 193 Ariz. 325, 333, 972 P.2d 658 (Ct. App. 1998) (refusing to recognize negligence liability for violation of UAGA in light of good faith immunity).
Indeed, one court in expounding upon the basis for this tort proposed that “[a] corpse in some respects is the strangest thing on earth.” Louisville & Nashville R.R. v. Wilson, 123 Ga. 62, 63, 51 S.E. 24 (1905).