A man needed a kidney and his son volunteered to be the donor. A doctor successfully surgically removed the son’s kidney. In a separate surgery, another doctor transplanted the son’s donated kidney into his father’s body. Subsequently, the father experienced complications requiring additional surgical procedures. Two weeks after the transplant, the doctor who successfully removed the son’s kidney performed exploratory surgery on the father. During that procedure, the doctor allegedly mistakenly stitched the renal artery, which supplied blood to the donated kidney. The doctor who originally implanted the kidney performed another surgery on the father. The doctor noted that the renal artery had been stitched in such a way that the donated kidney could not be saved. The doctor ordered the son’s kidney to be removed from the father.
The son and his wife sued the doctors for negligence in the performance of their professional services to the father for erroneously stitching the father’s renal artery and failing to monitor and supervise the father and properly detect the decreased blood flow to the kidney. The plaintiffs also sued the doctors’ employer under a theory of respondeat superior.
The defendants filed a motion for summary judgment arguing that the doctors did not owe the son a duty of care with regard to the treatment of his father and the plaintiffs did not suffer any legally cognizable damages. The district court granted the defendants’ motion for summary judgment.
The Supreme Court of Nebraska held that the physicians providing post-transplant treatment to the donee do not owe a duty of care to a kidney donor. The plaintiffs argued that the physician-patient relationship established between the son and the doctor who removed his kidney created a duty of care during the treatment of the father. The court rejected this argument. To establish that the doctor owed the donor-son a duty of care, the son must allege that during the medical treatment he received the doctor's conduct was negligent. The son did not allege that the treatment he received was negligent.
The plaintiffs argued that the doctor who implanted the kidney in the father owed a general duty of care to the son because the son was subject to serious risks associated with the father’s surgery. The court rejected this argument. The Nebraska Supreme Court has previously held that, in certain cases, the physician-patient relationship may engender a duty to third parties who are subject to serious risks associated with the patient's treatment or condition. However, that does not create a duty in this case. Generally, an actor owes a duty when the actor's conduct creates a risk of physical harm. The son had been discharged from the hospital by the time the doctors performed the allegedly negligent care of his father. The allegedly negligent care of the father posed no risk of physical harm to the son.
See: Olson v. Wrenshall, 284 Neb. 445, 2012 WL 5199705 (Neb., October 5, 2012).