KAREN D. SCARBROUGH
TRANSPLANT RESOURCE CENTER OF MARYLAND
Circuit Court for Baltimore City Case No. 24-C-18-000148
C.J., Graeff, Eyler, James R., (Senior Judge, Specially
asked to decide whether two Maryland statutes that provide
immunity for certain actions related to the recovery and
donation of organs apply to an organ procurement
organization's conduct in recovering organs for
transplantation. The appellant, Karen Scarbrough, alleges
that the appellee, Transplant Resource Center of Maryland,
through two of its employees, negligently packaged,
preserved, and transported a kidney intended for her. The
Circuit Court for Baltimore City dismissed Ms.
Scarbrough's complaint on the ground that Transplant
Resource Center enjoys good faith immunity from suit. Ms.
Scarbrough contends that the circuit court erred in
dismissing her suit because the statutory immunity does not
extend to conduct that occurs after an organ is removed from
the donor. Because we agree with the circuit court's
interpretation of the scope of the immunity, we will affirm.
Resource Center is an organ procurement organization that
harvests, preserves, packages, and transports donated organs
to hospitals around the United States for transplantation. In
June 2014, Ms. Scarbrough was on the waitlist for a kidney
transplant at the University of Alabama-Birmingham Hospital
(the "Hospital") when two employees of Transplant
Resource Center, Dennis Edwards and Peter Quackenbush,
"harvested, received, collected, handled, preserved
and/or packaged" a kidney from a deceased donor at
University of Maryland Medical Center. Transplant Resource
Center gave the donated kidney to a courier service that
transported it to the Hospital.
after the kidney was removed, the Hospital informed Ms.
Scarbrough that it was available for transplant. She traveled
from her home in Florida to the Hospital, where she was
prepared for surgery. Upon receiving and examining the
donated kidney, however, Hospital staff observed that it
"was hard and cold to the touch, with patchy
discoloration that appeared to resemble 'freezer burn,
'" and determined that it was not suitable for
transplant. The Hospital canceled Ms. Scarbrough's
Scarbrough sued Transplant Resource Center and Messrs.
Edwards and Quackenbush (collectively, "Transplant
Resource Center") for negligence, seeking recovery for
"both mental and physical" injuries as well as
"the economic losses suffered . . . as a result of the
negligence . . . ." She asserted that the defendants
"were negligent with respect to the collection,
packaging, preservation, transportation, and/or handling of
the donated kidney," which resulted in
"irreversible damage" to the kidney making it
unsuitable for transplant. Ms. Scarbrough included with her
complaint a letter from Dr. Kristin Mekeel, who wrote that it
was her "opinion to a reasonable degree of medical
certainty that in this case the kidney was improperly
packaged . . . ." Ms. Scarbrough did not allege that any
of the defendants acted in bad faith.
Resource Center moved to dismiss the suit on the ground that
it enjoys good faith immunity under both § 19-310 of the
Health-General Article (Repl. 2015) and the Maryland Revised
Uniform Anatomical Gift Act, §§ 4-501 - 522 of the
Estates & Trusts Article (Repl. 2017; Supp. 2018) (the
"Anatomical Gift Act" or the "Act"). Ms.
Scarbrough opposed the motion, arguing that those statutes
provide immunity only for those who remove the organ from a
donor's body or where consent is in dispute. The immunity
provisions, she argued, were not intended to apply to those
who negligently preserve, package, and transport the organ.
hearing, the court granted the motion to dismiss. In its oral
ruling, the court interpreted the statutes more broadly than
Ms. Scarbrough. The court concluded that the immunity
provided by the statutes "is designed to protect
organizations such as the [Transplant Resource Center] in
this case, and its employees in this case, because of the
fact that they have to move with such speed to preserve those
organs." Because of that, "there are times when a
mistake may be made that would not be made had a group or an
individual had more time to consider his or her actions in
tak[ing] a course of action[.]" In its written order,
the court stated that, under both statutes, "the good
faith immunity applies, as here, where Defendants'
alleged negligent post-removal conduct was done in good
faith." Ms. Scarbrough appealed.
Anatomical Gift Act and Section 19-310 of the Health- General
Article Extend Immunity to an Organ Procurement
Organization's Good Faith Actions in Recovering an Organ
case presents a question of statutory interpretation.
Transplant Resource Center contends, and the circuit court
agreed, that the two immunity provisions extend to the good
faith efforts of an organ procurement organization in
recovering an organ for transplant, including the packaging,
preservation, and transportation of the organ. Ms. Scarbrough
argues that the immunity provided by the statutes ends with
the removal of the organ. Based on the plain language of the
statute, we agree with Transplant Resource Center and the
interpreting a statute, "[w]e assume that the
legislature's intent is expressed in the statutory
language and thus our statutory interpretation focuses
primarily on the language of the statute to determine the
purpose and intent of the General Assembly."
Phillips v. State, 451 Md. 180, 196 (2017). Thus,
"we begin 'with the plain language of the statute,
and ordinary, popular understanding of the English language
dictates interpretation of its terminology.'"
Blackstone v. Sharma, 461 Md. 87, 113 (2018)
(quoting Schreyer v. Chaplain, 416 Md. 94, 101
(2010)). In reading the plain language, "we will not add
or delete words from the statute." Melton v.
State, 379 Md. 471, 477 (2004). "We read 'the
statute as a whole to ensure that no word, clause, sentence
or phrase is rendered surplusage, superfluous, meaningless or
nugatory.'" Conaway v. State, ___ Md.___,
No. 69, Sept. Term, 2018, 2019 WL 3024706, *9 (July 11, 2019)
(quoting Ingram v. State, 461 Md. 650, 661 (2018)).
"In parsing whether plain meaning or ambiguity is the
case, we view the relevant statutory scheme as a whole,
rather than seizing on a single provision."
Conaway, 2019 WL 3024706, *9. "If the statutory
language is clear and unambiguous, our analysis may
end," id.; however, even where that is the
case, "we often look to legislative intent and purpose
to determine if they ratify our analysis and interpretation
of a statute," Hammonds v. State, 436 Md. 22,
Anatomical Gift Act Confers Immunity on Organ Procurement
Organizations for Actions Taken to Recover a Donated Organ.
Anatomical Gift Act, enacted in 2011 to replace the 1968
Maryland Anatomical Gift Act, "is a modified version of
the 2006 Revised Uniform Anatomical Gift Act . . .
recommended for enactment in all states by the National
Conference of Commissioners on Uniform State Laws[.]"
Md. Dept. of Leg. Servs., Fiscal & Policy Note Revised,
S.B. 756, at 4 (2011). The Act applies to an "anatomical
gift," which it defines as the "donation of all or
part of a human body to take effect after the donor's
death for the purpose of transplantation, therapy, research,
or education." Estates & Trusts § 4-501(c).
procurement organizations play a critical role under the Act.
The Act defines such an organization as a "person"
designated as such by the Secretary of the United States
Department of Health and Human Services. Estates & Trusts
§ 4-501(r). Federal law, in turn, establishes
requirements for organ procurement organizations, which must:
(1) be nonprofit entities; (2) maintain accounting and fiscal
procedures specified by the Secretary; (3)have an agreement
with the Secretary to be reimbursed for the procurement of
kidneys; (4)meet the requirements of federal law and have
been certified by the Secretary within the prior four years
"as meeting the performance standards to be a qualified
organ procurement organization"; (5) have "a
defined service area that is of sufficient size to assure
maximum effectiveness in the procurement and equitable
distribution of organs"; (6)have sufficient staff
"to effectively obtain organs from donors in its service
area"; and (7)have a board of directors that includes
hospital administrators, members of the public,
representatives of transplant centers, and physicians
practicing in certain areas. 42 U.S.C. § 273(b)(1).
law also requires organ procurement organizations to:
(A)have effective agreements, to identify potential organ
donors, with a substantial majority of the hospitals and
other health care entities in its service area which have
facilities for organ donations,
(B)conduct and participate in systematic efforts, including
professional education, to acquire all useable organs ...