Federal Judge Rules for Dying Girl Needing Lung Transplant

(Image Credit: Courtesy Murnaghan Family)

A federal judge has ordered Health and Human Services Secretary Kathleen Sebelius to allow a 10-year-old girl to receive a lung transplant sooner than required.

The injunction is preliminary, and the judge will reconsider it at a hearing a week from Friday, June 14.

Sarah Murnaghan, a 10-year-old girl in Pennsylvania, is awaiting a lung donation that could save her life. Without it, Sarah could die of cystic fibrosis in weeks. Because of a little-known organ-donation rule that, for adult donations, adult recipients must take precedence over children younger 12, it will take significantly longer for Sarah to receive a lung.

If Sarah were 12, the severity of her condition would place her high on the list of adults awaiting lung donations.

Her parents have pressed the Health and Human Services secretary to waive the rule in their daughter's case. Sebelius has resisted.

At a budget hearing this week, Republicans on the House Education and the Workforce Committee begged Sebelius to waive the rule, protesting that a modified adult lung could save Sarah's life and that there is no medical reason for her to receive one ahead of adults.

Sebelius told them that 40 adults in Pennsylvania are also waiting for a lung, and that some children in the same hospital where Sarah is being treated might also die without a transplant.

"This is an incredibly agonizing situation where someone lives, and someone dies," Sebelius said.

The secretary has ordered an HHS review of the lung-transplant policy.

But a federal judge in the Eastern District of Pennsylvania has ordered that Sebelius "immediately" suspend HHS policy in Sarah's case. From Judge Michael M. Baylson's order, handed down today:

The Plaintiffs contend, inter alia, that the Under 12 Rule violates the command of the National Organ Transplant Act of 1984, 42 U.S.C. § 274(b)(2) that the system for allocating donated organs be "equitable" and address "the unique health care needs of children" as well as the Secretary's own regulation, 42 C.F.R. § 121.8(b), which requires OPTN's policies to give greatest consideration to allocating organs based on medical urgency, and that the Secretary's refusal to set aside the Under 12 Rule to protect the very few children nationally who are subject to it, despite evidence showing that the Rule discriminates against children and serves no purpose, is arbitrary, capricious, and an abuse of discretion. AND NOW, having considered the matter, including the Declarations of Sharon Ruddock and Arthur Baines, it is hereby ordered that the motion for a TRO is granted and that the Secretary shall direct the OPTN to immediately cease application of the Under 12 Rule as to Sarah Murnaghan so that she can be considered for receipt of donated lungs from adults based on the medical severity of her condition as compared to the medical severity of persons over 12 in the OPTN system. This Order shall remain in effect unless and until the Court orders otherwise at the conclusion of the hearing on a preliminary injunction.

Pennsylvania's Republican Gov. Tom Corbett had sent a letter to HHS seeking a suspension of the policy in Sarah's case. After the ruling, he encouraged Pennsylvanians to become organ donors.

"Sarah Murnaghan's story is a reminder of the gift Pennsylvanians can provide to so many children and adults in need of a transplant," Corbett said in a written statement.

"It only takes 30 seconds to choose to become an organ donor. More than 4.4 million Pennsylvanians have said 'Yes' to organ and tissue donation, but there is a need for greater involvement."