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The waiting list for life
By Ann Coppola, News Reporter
Published: 11/26/2007

Heart There are currently more than 98,000 people waiting for an organ donation in the United States. With so many individuals awaiting a life saving surgery, the thought of an inmate rising to the top of that list tends to strike a collective nerve among the American public. Allowing people serving time in prison access to the most complex and costly of medical procedures is a heated legal and ethical debate that is driving its way to the forefront of correctional policy issues.

“People say, ‘Why should a prisoner get a new heart when there are people in the free world who can’t?” says Dr. William Winslade, director of the Program for Legal and Ethical Issues in Correctional Health at the University of Texas Medical Branch (UTMB). Winslade and a team of researchers are about to release a lengthy report detailing why prisoners should be eligible for organ transplants.

“We concluded prisoners should not be discriminated against as possible candidates for transplant,” Winslade explains. “Prisons have a legal and moral responsibility to properly evaluate prisoners medically. If a prisoner meets the medical criteria for transplant eligibility, the prison must not be deliberately indifferent to that serious medical need and allow them to be considered for the transplant list.”

To be considered for an organ transplant inmates, like anyone else, must be referred by a doctor for the surgery. This is where the United Network for Organ Sharing (UNOS), which oversees the allocation of organs nationwide, comes in. When a UNOS transplant center approves a patient, he or she gets on a waiting list. Criteria for being placed on the list involve strictly medical items like blood type and overall health. Once a deceased organ donor becomes available, a computer generates a list of patients and tanks them based on factors like tissue match and length of time on the waiting list. A patient is then selected, surgery is scheduled, and the transplant takes place.

No UNOS policy currently exists that addresses whether or not someone currently incarcerated or convicted of a crime can be on the list or even a donor. According to UNOS, there are no social criteria for being on the list. Winslade and his colleagues say these “missing policies” provide conflicting results throughout the corrections world.

“Most prison facilities don’t have very clear policies about this,” Winslade explains. “Some systems have no policies at all, others have policies which permit people to become eligible, but then the question arises as to whether the prison systems are obligated to pay the cost of transplant. In some prison systems, if you want to be an organ donor you have to pay for the procedure yourself.”

Even though states are approaching this issue differently, several recent legal precedents are making things clearer. Winslade targets an inmate heart transplant in 2002 that cost the California Department of Corrections and Rehabilitation $1 million dollars the cause for much of the attention, and agitation, surrounding this.

“Prisons don’t want to spend that kind of money on a single prisoner,” Winslade says, “but now we have more recent legal developments that say prison policies cannot exclude people from pursuing their legal rights and fulfilling their medical needs.”

One of those decisions was the 2005 U.S. District Court “Trigo” case, where an inmate filed suit against the Texas Department of Criminal Justice claiming it was obligated to pay for his Hepatitis-C treatment.

“The courts had offered a bit of deference to prison systems,” says Dr. Evelyn McKinney, a UTMB postdoctoral fellow. “And if the prison system had a policy that was explained in some reasonable way, then the courts would abide by that. Whereas in Trigo, the interpretation there is that this is health care and the patient’s needs should determine the health care the patient receives, rather than the prison’s policy.”

Once prisons are legally obligated to provide services like those sought in the Trigo case, the corrections industry and society must next address the question of who’s going to pay for this type of treatment.

“I believe the law says that the patient cannot be denied necessary care,” McKinney says. “Certainly someone who needs a transplant is very ill. Now whether the state should be able to recover funds after the fact, I believe they should be able to try. But to be in accordance with the law, if somebody meets the criteria to receive a transplant, the prison must cover the cost of the care.”

In addition to the cost issue, medical opinions also can clash with what a correctional facility ideally would like to do. Mississippi Department of Corrections chief medical officer, Dr. Kentrell Liddell, understands this conflict all too well.

“You take a doctor, a health care provider like me, and put me in corrections; I am going to make sure the inmate gets his care,” Liddell says. “That sometimes conflicts with what the security personnel want. In corrections this is seen as further pacifying the inmates, further crippling the system. Oh, it is a huge issue.”

“There is an ethical issue behind it,” she adds. “That part of me feels bad for the little old lady who is a teacher, a U.S. citizen, never committed a crime, and in need of a heart transplant and she’s not covered by her insurance. If she can’t afford it, she dies.”

There are a number of reasons why concerns like Liddell’s are being thrust into the spotlight more frequently.

“Now in 2007, we’re becoming increasingly aware of a number of medical conditions that affect prisoner health including Hepatitis-C, diabetes and drug addiction and other factors that contribute to not just poor health among prisoners but create life threatening medical conditions,” Winslade says.

On the giving side of things, states have tried to address and encourage organ donations with unique solutions, but they have not seen much success through their legal systems.

“Missouri at one point proposed making it possible for people on death row to become organ donors and if they did, their capital sentence would be reduced to life imprisonment,” Winslade adds. “South Carolina wanted to allow prisoners who agreed to be donors to get reduced sentence. None of these laws passed, but this is a whole other area of interest and concern. There’s been growing literature on whether prisoners should be recipients and also whether we should allow them to donate even tissue such as bone marrow. None of these question have been answered clearly yet.”

If they haven’t been answered yet, Winslade is pretty sure his report will help stimulate further dialogue. “The report is going to be controversial,” he acknowledges. “It’s a tricky issue.” As the number of people waiting for transplants climbs to 100,000, the debate over inmates getting on donation lists and then receiving the costly care associated with these procedures will only get trickier. For the time being, the corrections world will have to remain on the waiting list for more answers.

Related Resources:

Learn more about the organ donation process

More information from Dr. Winslade’s program

New York Times article on the Calif. Heart transplant


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