Aug. 29, 2013 — -- The University of Toledo Medical Center admits a nurse threw away a brother's kidney before it could be transplanted into his sister last year, but nevertheless is asking a state court to dismiss a lawsuit filed by the family.
UTMC eventually was able to arrange another kidney for Sarah A. Fudacz, and she had a successful operation in Denver last November. But now, in court papers, the medical center denies it was medically negligent.
"They are admitting they threw the kidney away, but they are not admitting substandard medical care," Fudacz family lawyer James E. Arnold told ABCNews.com.
"They must think that it is within standard care to throw a kidney away," Arnold said. "It would be more decent to admit substandard care, and the family shouldn't have to be going through litigation to prove it. It's obvious to everyone but the university -- in all fairness."
But Dr. Jeffrey Gold, chancellor and executive vice president for health affairs at University of Toledo Medical Center, said in a prepared statement today that the hospital is "sympathetic and sorry" about the accident.
"The university continues to express the sorrow that we feel that this unfortunate incident occurred. We apologize sincerely. We have done our best to provide many remedies to help those affected move forward."
Gold said UTMC's renal transplant program had performed more than 1,700 renal transplants over more than 40 years with a better than 98 percent success rate.
"While the legal realities of this situation are complex and ongoing, we have worked hard to learn from this incident and have spread these lessons widely to try to make hospitals and transplant programs safer across the country," said the statement.
The hospital is also challenging claims by the family to recover damages for pain and suffering, according to the Ohio Attorney General's Office, which is defending the medical center because it is a public university.
"The state felt [the family's claim] did not have basis, essentially, under Ohio law," said AG spokeswoman Kate Hanson.
Under current law, an adult child can recover for loss for a parent, but not the other way around, according to Arnold.
"It hardly makes sense," he said.
Last August, Fudacz, 24 at the time and with end-state renal failure, was under anesthesia and ready to receive a perfect-match kidney donated by her then 20-year-old brother, Paul Fudacz, Jr. But the transplant operation was stopped when nurse accidently threw away the donor organ, which was stored in a protective slush, according to legal papers.
Doctors tried to resuscitate the kidney, but it was rendered unusable, both sides have said. After a state investigation, the hospital's live-donor program was temporarily suspended, but has since been resumed.
In the months between her failed surgery and the one in Denver, Sarah "suffered through painful dialysis, four painful surgeries ... and was forced to live through the uncertainty of whether she would ever find a kidney suitable for transplant before dying," the family has alleged in its lawsuit.
Dr. Michael Rees, the surgeon who performed the surgery, continues to work at the public medical center, according to court documents.
The center's administrator of surgical services, was placed on paid administrative leave.
A part-time nurse who discarded the contents of the slush machine, including the kidney, before surgery was complete, resigned on Sept. 10, 2012.
UTMC fired longtime nurse Melanie Lemay, who relieved the part-timer when the latter took a break. Lemay is now suing the hospital for wrongful discharge, defamation, slander and libel, according to a complaint filed Aug. 2 in the Ohio Court of Claims. Her husband, Patrick Lemay, also is listed as a plaintiff in the lawsuit, which seeks damages exceeding $25,000.
John and Sarah Fudacz, their parents and their four other siblings, filed a lawsuit July 29 against UTMC in the state Court of Claims in Columbus, alleging medical negligence and damages for pain and suffering.
The eight members of the Fudacz family asked for damages of $25,000 each, according to the lawsuit.
As for the health of the Fudacz siblings, they are "functioning well," according to Arnold.
"But the quality of the kidney is not as good as the one the brother was going to give to her," he said. "The match characteristics are not as good when you take it from a stranger."
He argued Sarah Fudacz has a higher risk of organ rejection and may have undergo another transplant in her lifetime.
"From a functional perspective, Paul can live on one kidney, unless something happens to him," said Arnold. "But I have never known anyone who wants a kidney taken away for no good reason."