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Negative Effects of Organ Transplants

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The Negative Effect of Organ Transplantation and Access
on Ethnic Minorities in the United States
Annotated Bibliography
H. Leon Hewitt

2nd Year Law Student
The University of Dayton School of Law
Fall 1998


Introduction

For patients on long-term dialysis, receiving a healthy kidney from a donor offers a longer life span, an improved quality of life and lower overall health care costs. (1) However, for most minorities, especially African Americans, disparities exist between the allocation of scarce organs compared to White Americans. The term minorities include African Americans, Hispanics/Latinos, Asian Americans and Native Americans. 

This bibliography focuses primarily on African Americans because of the amount of data available and as a group, African Americans are most negatively impacted by current policies. In addition, they represent the largest minority population in the United States. Despite Medicare financing for kidney transplantation, African Americans are still worse off in comparison to rich white males. (2) Most recent data indicates that one-third of patients with end stage renal disease (ESRD) are African American, but are recipients of only 22% of the kidneys. (3) 

In 1984, Congress passed the National Organ Transplant Act (NOTA) with the objective to support a rational and fair national health policy. (4) NOTA requires the Secretary of the Department of Health and Human Services (HHS) to "by contract provide for the establishment and operation of an Organ Procurement and Transplantation Network (OPTN)" through which the procurement, distribution and transplantation of human organs is organized. (5) In 1986, the Department of HHS awarded the OPTN contract to the United Network for Organ Sharing, Inc. (UNOS) a private non-profit entity, for the establishment and implementation of the federal OPTN. UNOS, as part of its obligations adopts principles and procedures for the distribution of organs for transplantation, maintains a computer registry of persons requiring an organ transplant, collects national data on transplantation frequency and results and also develop rules for organ allocation. (6) As mandated by 42 U.S.C.A. § 1330b-8, hospitals with transplant programs must abide by UNOS rules or lose their Medicare and Medicaid funding. (7)

As of December 2, 1998, UNOS currently has 435 members involved in 885 programs. (8) Appendix A includes statistical analysis documenting the number of transplants by Race, comparing White, Black, Hispanic, Asian and others recipients by organ groups including, Heart-Lung, Heart, Intestine, Kidney, Liver, Lung, and Pancreas from 1993 to December 31, 1997. (9

Recent data indicates African Americans wait almost twice as long as White Americans for a transplant-13.9 compared to 7.6 months respectively. (10) Some of the factors affecting the selection of a minority for a kidney is the failure of transplant centers placing patients on the waiting list (11 )federally mandated antigen matching by the Organ Procurement and Transplantation Network (12)and a lower number of African American donors. (13)

The current transplant program depends on altruism, where individuals decide to donate organs because it is the right thing to do. At least one author has listed a number of possible solutions including: A procurement market system, non-cash payments, required requests, presumed consent, conscription, new perfusion technique, Pennsylvania's Organ Donation Awareness Trust Fund, and the Cadaveric Organ Donor Act. (14)

Some methods that has been proposed to increase the organ shortage included: permitting death row inmates to donate organs, compliance with patient wishes, a license fee discount, and a national registry with detailed procedures. (15) Other proposed solutions for reversing this trend is the previously mentioned changes in the allocation policy of UNOS, eliminating the discretion of physicians for placing patients on the waiting list (16) and increasing the supply of minority organ donors through awareness campaigns. (17)

One author has identified two reasons organ donations may not occur. The first is potential donors (or surviving family members) may refuse to donate. Second, the request for donation may fail to occur. (18) Reasons cited for why African Americans and other ethnic minorities donate less than whites include; lack of information, religion, distrust of medical professionals, fear of premature death, a preference to donate only to members of the same race, and the failure of health care professionals to ask African American families for consent effectively. (19 )

Reasons why Hispanics have a low donation rate include the language barrier, the significance of extended family members, religion, myth, lack of awareness, and superstition. Possible solutions for reversing this trend is facilitating changes in the allocation policy of UNOS, eliminating the discretion of physicians for placing patients on the waiting list (20) and increasing the supply of minority organ donors through awareness campaigns. (21)

Attorneys can play an important role toward changes in UNOS policies since the current rules are not enforced and are non-binding. Some authors have advocated a cause of action against HHS and UNOS under the Equal Protection Clause (22)and Title VI of the Civil Rights Act (23)Others have suggested filing negligence lawsuits against physicians if they cannot justify exclusion of patients on the waiting list (24)

Given the current level of inequality towards minority transplant recipients, it is clear that justice and fairness need to be included into the system. Although African American organ donations are increasing, this action alone will not resolve the plight of minorities currently on waiting lists. This is because African Americans are disproportionately affected by ESRD and an overwhelming number of organ donors are White American. Because of biological differences in antigen, matching, African Americans are at a clear disadvantage for receiving organs. Although there are immunosuppressant agents such as cyclosporine, which has decreased the importance of antigen matching, but the most common solution documented throughout this bibliography is the need for African Americans to increase their rate of organ donations. African Americans hold the key to reverse the racial disparity in organ allocation and need to take immediate and effective action now.

 


The following articles are included in this bibliography:
 
 et al., Access To Kidney Transplantation: Has the United States Eliminated Income and Racial Differences?.

 Analyzing the OPTN Under the State Action Doctrine-Can UNOS's Organ Allocation Criteria Survive Strict Scrutiny?.

An Assessment of the Impact of the National Minority Organ Tissue Transplant Education Program,. 

Barriers to Cadaveric Renal Transplantation Among Blacks, Women and the Poor.

Black Ministers Urging Congregation To Become Organ, Tissue, Blood Donors.

"Brother, Can You Spare A Liver?" Five Ways To Increase Organ Donation.

The Effect of Race on Access and Outcome in Transplantation.

Ethical Criteria for Procuring and Distributing Organs for Transplantation.

The Future of Organ Transplantation: From Where Will New Donors Come, To Whom Will Their Organs Go?. 

Human Organ Transplantation: The Role of Law.

The Impact of Comorbid and Sociodemographic Factors on Assess to Renal transplantation.

 Liability Issues Arising Out of Hospitals' and Organ Procurement Organizations' Rejection of Valid Anatomical Gifts: The Truth and Consequences. 

 Organ Donation in the Black Population: Where Do We Go From Here?.

Organ Donation in Three Major American Cities With Large Latino and Black Populations.

Organ Transplantation.

 Organ Transplantation-Barriers, Outcomes, and Evolving Policies.

 Race and Sex Differences in the Identification of Candidates For Renal Transplantation.

 Racial Differences in Access to Kidney Transplantation.

 Racial Equity in Renal Transplantation.

 Racial Perspectives on Kidney Transplant Donors and Recipients.

 The Shortage of Organs for Transplantation:Exploring the Alternatives.

Should Donors Say Who Gets Organs?.

 Slavery, Segregation and Racism: Trusting the Health Care System Ain't Always Easy! An African-American Perspective on Bioethics.

 The State of Federal Health Statistics on Racial and Ethnic Groups.

 Transplant Community Outraged Farrakhan Says Whites Condone Black-on-Black Killings Because It's a Source of Transplantable Organs.

 Unequal Racial Access to Kidney Transplantation.



H. Leon Hewitt is a second year law student at the University of Dayton School of Law in Dayton, Ohio. He graduated form the University of Michigan in Ann Arbor, MI, with a degree in Pharmacy. Upon graduation from the University of Dayton School of Law, he intends to practice in Ohio.

 


Annotations

Philip J. Held, et al., Access To Kidney Transplantation: Has the United States Eliminated Income and Racial Differences? 148 Archives of Internal Medicine 2594 (1988).

This article found that white, male, young, non-diabetic, high income patients treated in small kidney transplant units are more likely to receive a cadaver transplant under Medicare than Black kidney patients. Another result of the study was the finding that size of transplant unit may be correlated with access. The authors found a variety of issues that may explain the disparity between white and black patients include: Medical suitability, provider selectivity based on unknown criteria, and patient characteristics.

The findings of this study are consistent with almost all the other articles studying racial differences in kidney allocation. The authors commented that blacks and other disadvantaged groups might have a lower motivation and assertiveness, along with less education and ability to relate to the referral and transplantation system. I believe that more blacks would be willing to receive a transplant if they were informed of the benefits of a transplant.

This article did not contain a bibliography or footnotes. 



Benjamin Mintz, Analyzing the OPTN Under the State Action Doctrine-Can UNOS's Organ Allocation Criteria Survive Strict Scrutiny? 28 Colum. J. L. & Sol. Probs. 339 (1995).

This article analyzed whether the policies of the Organ Procurement and Transplant Act (OPTN) organ allocation scheme would survive strict scrutiny since the current system of using antigen matching has a discriminatory effect against blacks. Mintz concluded that if OPTN's policies were scrutinized under state action in certain circumstances then a plaintiff could bring an action under the Equal Protection Clause. Mintz believes that the policies developed by UNOS could be more narrowly tailored since there have been some studies showing that a complete antigen match has no reliable effect on survival rates for blacks. In addition, the use of new immunosuppressant agents may further reduce the correlation of an antigen match and grafting survival.

Mintz was not sure how the Supreme Court would rule on the issue of state action. He Believed that based on past precedent, the Court would rule against a finding of state action. On the other hand, he believed the chances would are enhanced if the Secretary of HHS adopted binding allocation criteria. 

I found this article as most interesting because the government has been providing funds for UNOS to administer the programs for years, with no binding allocation criteria. This inaction could be a possible reason why so much discretion of transplant center decision-makers at the local level has lead to fewer blacks being placed on transplant waiting lists and fewer blacks selected for a renal transplant. This situation must change because greater accountability is indicated until legal redress is more feasible to force equity in the allocation scheme.



Clive O. Callender, et al., An Assessment of the Impact of the National Minority Organ Tissue Transplant Education Program, 28 Transplantation 394 (1996).

Since 1982, Dr. Clive O. Callender, transplant surgeon, has initiated research into the behavioral factors that influence the lack of organ and tissue donations in African Americans. This article reports that the Minority Organ Tissue Transplant Education Program (MOTTEP) currently targets Native Americans, Hispanics, Asians/Pacific Islanders, and African Americans spreading the message regarding organ and tissue donations. Dr. Callender has demonstrated that intervention programs can have a dramatic impact towards awareness and increasing organ procurement.

This study showed that when African Americans and other minority groups are educated on the merits of organ donations, organ procurement increases. Knowledge, change in attitudes, and providing a method to donate organs, such as the use of donor cards, can have a positive impact towards alleviating the strain on the shortage of organs, especially for minorities. In addition, I agree that a one-time seminar is not enough. To change behavior it takes multiple programs over a long period of time to get the message across in the black community that it is acceptable to provide an organ to the less fortunate.

This article provided no bibliography or footnotes.


G. Caleb Alexander & Ashwini R. Sehgal, Barriers to Cadaveric Renal Transplantation Among Blacks, Women and the Poor, JAMA, October 7, 1998 at 1148.

This article reported on a study to determine the relative importance of a series of transplantation steps from the diagnosis of end-stage renal disease (ESRD) to being placed on a transplant waiting list with the ultimate goal of receiving a transplant. The steps studied was (A) being medically suitable and possibly interested in transplantation; (B) being definitely interested in transplantation; (C) completing the pre-transplant work-up; and (D) moving up the waiting list and receiving a transplant. The authors reported that compared to whites, blacks were less likely to complete steps B, C, and D, after adjustment for age, sex, cause of renal failure, years receiving dialysis, and median income of patient zip code. The authors found a significant difference at step C when race and income was factored in. This is a critical step, because it acts as a barrier towards receiving a transplant.

This was an excellent study because it highlighted one of the main barriers preventing blacks from being placed on a waiting list and eventually receiving a new organ. I found most interesting the fact that failure to complete step C was not due to medical unsuitability or the patient's lack of interest from receiving a transplant. It is my contention that at the local level physicians are allowed too much discretion in selecting transplant candidates. The authors believe there is a latent bias and financial disincentives that play a role too. I agree, until more standardized rules are formulated, this disparity in organ allocation among blacks and whites will continue.

This article contained neither a bibliography nor footnotes. 



Black Ministers Urging Congregation To Become Organ, Tissue, Blood Donors, Transplant News Aug. 31, 1998, 1998 WL 9525582.

This article documents the efforts of the Congress of National Black Churches (CNBC), made up of eight denominations urging members of their congregations to become organ, tissue, and blood donors. One of the religious leaders expressed his hope to "dispel any myth or mystery that we need all of our body parts to get to heaven." Another minister stated that this is untrue, since "it is the soul that leaves the earth while our physical presence is left behind." The ministers believe that their efforts will have a positive impact towards increasing the number of organ donors.

Since the church pays such a critical role not only in the black community, but in other communities as well, this effort is an excellent first step for increasing organ donations because it would help in dispelling any fears an individual may have. One reason is religious leaders have the trust of members of the community. If these ministers are successful, they need to spread the message to other cities and congregations.

This article did not include a bibliography or footnotes



Phyllis Coleman, "Brother, Can You Spare A Liver?" Five Ways To Increase Organ Donation, 31 Val. U. L. Rev. 1 (1996).

This is an article focusing on the expanding the supply of available organs. The current transplant program depends on altruism, where individuals decide to donate organs because it is the right thing to do. The author listed a number of possible solutions including: A procurement market system, non-cash payments, required requests, presumed consent, conscription, new perfusion technique, Pennsylvania's Organ Donation Awareness Trust Fund, and the Cadaveric Organ Donor Act.

The author proposed her own solutions which included: Permitting death row inmates to donate organs, compliance with patient wishes, a license fee discount, and a national registry with detailed procedures. The suggestion allowing death row inmates to donate organs was the most radical suggestions offered. However, it may not work because it would require a change in execution techniques and it is hard to envision the removal of a prisoner's organs before execution. The most viable method is to respect the patient's wishes. If hospitals and doctors followed the law, it would help to increase the supply of donor organs. 

This article did not contain a bibliography, but provided extensive footnotes.



Bertram L. Kasiske, et al., The Effect of Race on Access and Outcome in Transplantation, 324 NEJM 302 (1991).

This is an article reporting the conclusions and recommendations from the Patient Care and Education Committee to the American Society of Transplant Physicians to examine the issue of racial inequality in organ transplantation. The committee found that first; end stage renal is more common in racial minorities than in whites. Second, fewer blacks than whites undergo kidney transplantation. The committee found that biological and sociological factors play a role in this disparity. Third, the rate of survival after renal transplants is lower among blacks than whites. Factors accounting for this may be differences in MHC antigens, patient noncompliance, and socioeconomic factors. Fourth, the rate of survival among Hispanics and Asians may be similar to whites, but more research is needed to confirm these findings. Lastly, problems of racial and ethnic inequality may carry over to liver and pancreatic transplants where the proportion of transplantation is lower than expected for blacks compared to their percentage of the population.

The committee made the following recommendations. First, examine data from the OPTN and other sources to determine how differences in tissue antigens influence organ transplantation rates among minorities. Second, critically examine the process of selecting patients on dialysis for renal transplantation. Interviews with patients and health care providers may uncover why qualified candidates remain on dialysis. Third, assess the differences in public and private insurance plans that may limit access to transplantation. Fourth, examine the process that leads to placement of a patient on the wait list to uncover any possibility of favoritism. Fifth, examine the reasons why the rate of survival in blacks following transplantation is lower than whites. Issues of education after surgery and compliance may reverse this trend. Sixth, examine the effect of race on the transplantation of livers, the pancreas, and other organs. Finally, the committee encouraged health care providers to increase their advocacy role in providing the most appropriate form of treatment.

I found this to be one the most comprehensive articles I have read on transplantation in regards to its recommendations for increasing greater equality for minorities or areas that need further investigation to uncover reasons for racial disparity in organ allocation. It is my hope that the recommendations will be forwarded to the Secretary of HHS and officials at UNOS so they may incorporate these ideas for balancing organ allocation equally across all racial lines.



James F. Childress, Ethical Criteria for Procuring and Distributing Organs for Transplantation, 14 Journal of Health Politics, Policy and Law 87 (1989).

This article provided an ethical analysis and assessment of various actual and proposed policies of organ procurement and distribution in light of moral principles. Childress evaluated four different methods of acquiring human body parts (HBP): 1. Donations (express and presumed), 

2. Sales, 3. Abandonment, and 4. Expropriation. The author advocated continuing with donations and allowing it time to work before moving towards a market as an alternative. Childress reported that the federal Task Force on Organ Transplantation considered organs to be a natural resource that belonged to the community to be used for the public good. I find this statement to ring hollow after the author reported that of the 6,000 kidneys transplanted in the U.S. in 1985, 300 were transplanted to nonresident aliens who came to the U.S. for medical care and another 200-250 kidneys were shipped abroad for use in other countries apparently at taxpayers expense. The author reported that access to transplantation hinged on patient choices and legitimate patient factors rather than on the provider's failure to inform and refer some groups of patients.

To allow foreign nationals to obtain organs in the face of an organ shortage, and lower access for minorities to waiting lists, who are U.S. citizens is outrageous. It undermines the confidence that people need to have in order to increase organ donations. The fact that we as taxpayers are paying for organ procurement serves to deepen my disgust. My question is what access to foreign organ donors do we have? Also, considering that the "green screen" affects minorities in such a negative way, any costs associated with organ procurement for aliens should come their own government, not ours. The author did not report on this, but more information is needed. Out of all the articles I have read and commented on this revelation has angered me the most.

This article contained no bibliography or footnotes.



Mark F. Anderson, The Future of Organ Transplantation: From Where Will New Donors Come, To Whom Will Their Organs Go? 5 Health Matrix 249, 301 (1995).

The author observed that under the current system of organ allocation, patients are placed on waiting lists according to criteria developed by local transplant teams. Anderson believed the subjectivity in patient selection on the list created an opportunity for abuse, favoritism, and unequal treatment based on class, race, or other prejudices. He believes that changes in the criteria used to place patients on the waiting list or selecting them once they are placed on the list is needed to avoid the untoward results that occurs under the current system. Anderson felt that considerations of utility should be paramount since resources are limited. He also looked to outlaw multiple organ transplants, repeat transplants, and transplants to critically ill patients who will probably die with or without a transplant. 

I believe that the subjectivity of the transplant teams placing patients on waiting list is the number one issue confronting minorities. Changes must definitely be made at the local level. I agree with the author when he states that living donors are a resource that should be further explored without paying organ donors. However, who would agree to donate a kidney or a lung unless it was to a family member? It is also the author's contention that principles of distributive justice and fairness are needed. I agree with this statement, but I cannot reconcile this with the advocacy of outlawing multiple or repeat transplants. What if there was a small child who was a potential recipient of an organ? Who could not refuse considering a patient like this without balancing the factors needed for placement on a waiting list? I view the author's proposals on this point as too callous.

This article did not contain a bibliography, but included extensive footnotes.



Fred A. Cate, Human Organ Transplantation: The Role of Law, 20 J. Corp. L. 69 (1995).

This article focused on the role of the legal system regulating organ donation and transplantation. He listed alternatives to the transplantation problem are presumed consent, compensation, and medical alternatives to cadaveric donors. Cate explained that lawyers have at least three roles to play in order to decrease the ambiguity of the law on transplantation and to increase organ donation. First, lawyers must help investigate alternatives to current transplant practice and participate in modifying the current legal structure. Second, lawyers have an opportunity to raise the issue of donation with their clients, provide accurate information regarding the legal rights of every adult and ensure the client's wishes is followed. Third, and Cate says is most important for lawyers, is to guarantee the integrity of the organ procurement, distribution, and transplantation system.

I agree with Cate when he states the public must have confidence in the fairness government if we as a society hope to benefit from an increase of organ donation. I also believe that to avoid the "green screen" where no one is placed on a waiting list for an organ without demonstrating an ability to pay needs to be addressed. Patients need to have access to insurance possible or we will be perpetuating the belief that only the wealthy will have the opportunity for procuring a transplant while the poor are left behind. I also believe that attorneys are uniquely skilled in changing the current system for the better. I also believe that Cate has a good idea in switching the presumption of the law from organ denial to organ donation.

This article does not contain a bibliography, but has extensive footnotes.



Daniel S. Gaylin, et al., The Impact of Comorbid and Sociodemographic Factors on Assess to Renal transplantation, 269 JAMA 603 (1993).

This article reported on a study showing that patients with cardiovascular diseases showed a lower transplantation rate compared to patients without the disease. Obese patients and diabetics were also placed at a disadvantage. The authors concluded sociodemographics are a factor for patients being placed on the transplant list. The authors also reported that smokers had lower transplantation rates than nonsmokers, but were not surprised by this since smoking is an indicator of a life-style choice and is associated with a high mortality. 

When you consider that blacks and other minorities frequently have greater health problems than whites it gives decision-makers another excuse to hide behind their choice not to place a person on the transplant waiting list. Unless there is a change in the entire health care system addressing access to medical care, it is unlikely this situation will improve soon. In order to increase their chances, blacks and other minorities must take the first step towards making healthy life changes and remove as many obstacles for transplant selection as possible. 

This article did not contain a bibliography or footnotes.



Daniel G. Jardine, Liability Issues Arising Out of Hospitals' and Organ Procurement Organizations' Rejection of Valid Anatomical Gifts: The Truth and Consequences, 1990 Wis. L. Rev. 1655 (1990).

This article proposes that potential donor recipients bring legal claims against doctors and hospitals that refuse the decedent's organ donor gift because they failed to get consent from the next of kin. Jardine's purpose for introducing these claims are: (1) to eliminate the hesitation of hospitals and organ procurement organizations (OPO) to accept valid anatomical gifts; (2) To give hospitals and OPOs a tool, i.e. legal leverage, to use when discussing a decedent's organ donation with next of kin; and (3) To recognize the rights of and wishes of decedent donors and beneficiaries-recipients. The causes of action Jardine proposes potential recipients take against donees are negligence. Actions against the next of kin include tortious interference and invasion of privacy.

I find Jardine's approach to be quite interesting and novel. On the other hand, I am not so sure that anyone would pursue such a cause of action. I believe that education of the laws to doctors and hospitals is needed rather than litigation. My concerns are what measures will be undertaken to prevent hospitals from abusing patient rights if the UAGA is enforced and doctors and hospitals are shielded form lawsuits. There would have to clear indications that there is no counterfeit permission procured. However, I do agree that the UAGA should be enforced as long as donor wishes as valid. 

This article contained no bibliography, but extensive footnotes. 



Clive O. Callender, Organ Donation in the Black Population: Where Do We Go From Here? 19, No. 2, Suppl.2 Transplantation Proceedings 36 (1987).

Clive Callender has been an advocate for increasing organ donor awareness in the black community for years. Callender reported on a task force formed in 1984 to study the impact of health care in the black population with these findings: (1) The primary cause of renal disease in blacks is hypertension; (2) Hypertension was the dominant cause in renal disease in 40% of blacks and the cause of renal failure in 20% of white patients; (3) the most frequent primary cause of death for ESRD in 1983 was hypertensive nephrosclerosis (33%) occurs most commonly in blacks; and (4) diabetic kidney disease was the second leading cause of death in patients with ESRD. Callender also reported that only 10% of blacks compared to 20% of whites opted for transplantation. The most common reasons for lack of donation of organs among blacks were: lack of information, religious fears, superstition, distrust of the medical community, fear of premature death, and racism (blacks would prefer to give their kidneys to other blacks).

I agree with Callender that more research is needed to study black histocompatibility antigens where little information exists. This article provided excellent ideas for initiating a grass roots campaign for organ donations in the black community. Callender found that a face-to-face approach involving the entire community, lay people, experts speakers presenting a sophisticated slide show presentation, gift of life posters and gift of life donor cards were just a few of the excellent ideas reported to increase minority participation for becoming organ donors. Callender also suggested that if individual signs a donor card they should discuss it with members of their family before tragedy strike. I also found the Minority Perspective Fact Sheet incredibly informative.

This article did not contain a bibliography or footnotes.



Luis M. Perez, et al., Organ Donation in Three Major American Cities With Large Latino and Black Populations, 46 transplantation 553 (1988).

This article studied family refusal rates (FRR) to cadaver organ donation in three large U.S. cities, New York, Los Angeles, and Miami, with large Black and Latino populations. The authors found that blacks and Latinos were 42% of the transplant recipients, 49% of patients on waiting lists and 57% of patients on dialysis in the three cities. At the same time, the FRR was 45% for blacks and 43% for Latinos. Because of the high family refusal rates, the authors estimated that at 1000 transplantable kidneys were lost over a forty-month study period. The authors cited the two main reasons why a potential donor does not become an actual donor are, lack of consent and lack of referral. The authors to their credit gave an extensive list of reasons why blacks and Latinos have such high family refusal rates.

I believed this article was very informative regarding low donation rates in the Latino community. I agree with the authors that further study is needed to uncover the reasons for differences in donation rates among these groups and in the region overall. I also believe that a low number of minority professionals may be hurting our chances to communicate with people of different cultures and languages. Current providers must learn to reach out for everyone to benefit from organ donations.

This article contained no bibliography or footnotes.



Organ Transplantation, 103 Harv. L. Rev. 1519, 1614 (1990).

This article discusses the problem of obtaining an adequate supply of donor kidneys and developing an equitable system for distributing scarce medical resources. The authors described current efforts in the selection of a recipient for donor organs as a two-staged process. The first phase is when private transplant teams determine which patients to place on waiting lists. The second phase of the recipient selection process is governed by "objective" medical criteria. In the first phase, minimal legal rules exist in selecting patients for the all-important waiting lists. The authors criticized the arbitrary decision-making of physicians excluding seemingly eligible patients from the transplant waiting list. The authors surmise that when physicians are forced to choose patients from a large pool they most likely will choose people most like themselves and exclude those they deem "unworthy." The authors felt that the second phase presented difficult ethical choices where two values compete: urgency of need and the probability of successful transplantation. 

The authors analyzed constitutional safeguards of the Due Process Clause and Equal Protection Clause, however they concluded that due to lack of state action, the distribution of transplantable organs did not fall under either area of constitutional protection. Since blacks receive a disproportionately high share of kidney transplants compared to their rate of donation, it would be difficult for a black plaintiff to prove any discriminatory intent. The authors did surmise that a potential transplant candidate was entitled to a hearing and may even have a cause of action, such as a malpractice suit to curb physician discretion in the selection of patients on the waiting lists.

I believe the authors are correct in targeting the discretion that physicians have in placing patients on the transplantation list, and more research in this area is needed. The authors did not appear to disagree with UNOS's system giving more weight to quality of antigen match, and were willing to continue adhering to the current system compared to other alternatives. However, I disagree that UNOS's current point scheme is preferable to others because it affects minorities disproportionately and should not be tolerated but instead modified. 

This article contained no bibliography, but provided extensive footnotes.



Edgar L. Milford, Organ Transplantation-Barriers, Outcomes, and Evolving Policies, JAMA, Oct. 7, 1998 at 1184.

This article reported on recent discussions between the Secretary of HHS and UNOS addressing the issue of fairness and effectiveness of organ allocation. One proposed HHS regulation would require that patients have equal waiting times towards a transplant or that the "sickest" patients have the first opportunity to receive a transplant. The author believed that a set of rules could be drafted that would increase the number of years of patient life or organ function. However, the author believed that this would be unfair to minorities. The author also disagreed on a "first-come, first-served" allocation scheme as inefficient, since many recipients may not have as favorable an outcome as other more promising candidates may. The author reported on one promising solution utilized in the New England region. A system factoring in patent urgency, waiting time, geographic relation of donor to recipient center, histocompatibility match, and candidate sensitization. The results have led to more equitable allocation to blacks and Hispanics while also ensuring a reasonable amount of local access to organs.

It is my contention that the results of the New England experience be incorporated into any proposals that may be developed by HHS and UNOS. Based on the results, other regions should adopted and implement the same type of system that would use the very same factors. The current system is unfair to minorities and effective and reasonable solutions deserve careful review. However, the article indicated more organs need to be donated from minorities. I agree, however in the meantime steps need to be taken provide for equitable allocation among all races.

This article did not contain a bibliography.



J. Michael Soucie, et al., Race and Sex Differences in the Identification of Candidates For Renal Transplantation, 19 American Journal of Kidney Diseases 414 (1992).

This was a study on patients with ESRD in North Carolina, South Carolina, and Georgia. The authors found significant differences in the likelihood of being selected for a transplant between white and black patients. The authors found that diabetic patients were less likely to be selected as candidates were than nondiabetics were. In addition, patients on dialysis longer than two years or more were less likely to transplant candidates.

The fact the authors found that diabetics and patients on dialysis for a long period of time are less likely to be candidates is a direct correlation for why blacks have lower access. More blacks with ESRD have a higher co-morbidity than whites and are on waiting lists as a Race almost twice as long as whites. As long as providers are allowed the discretion in choosing patients, this situation will not change.

This article contained no bibliography or footnotes.



Paul W. Eggers, Racial Differences in Access to Kidney Transplantation, 17 Health Care Financing Review 89 (1995).

This article studied access to transplantation using three measures: time from renal failure to transplant; time from renal failure to wait listing; and time from wait listing to transplantation. The study found that no matter what measure is used, blacks with end stage renal disease (ESRD) were worse off than Whites, Asian-Americans, and Native Americans with ESRD. The authors found that the enrollment process was critical towards receiving a transplant. The authors cited the Asian Americans as an example. This group had a lower rate of transplantation than whites after wait listing, but due to higher enrollment rate on the wait list, they overtake white patients in transplantation rate within a five-year period after being diagnosed with renal failure. The authors stated that it was important to increase black enrollment on the OPTN with education and outreach efforts, however they cited the limiting factor was an organ shortage.

I conclude that the key factor for minorities not getting on the waiting list is attitudinal factors from organ providers as well as attitudinal factors among black persons as well. I disagree with the authors who contend that biological factors play a significant role simply because blacks are not a favorable antigenic match with a white donor. I believe that if there is lack of access to the wait list there will be no chance at receiving a donor organ. I do believe that there should be less weight given to HLA matching because this would result in increase of minority access rates.

This article did not contain a bibliography or footnotes.



Robert S. Gaston, et al., Racial Equity in Renal Transplantation, 270 JAMA 1352 (1993).

This article reports on the current system of organ allocation based on quality of HLA matching. The authors report that based on available evidence, antigenic similarity between donor and recipient may enhance cadaveric graft survival and should be the primary factor influencing organ allocation. The authors contend however, this system places blacks at a significant disadvantage because most donors are white and the closer the HLA match, the less likely a kidney will cross racial lines. The authors assert all suitable renal transplant candidates should have equal access to kidneys and the system should reevaluate whether the cost in equity is justified. This position is based in part on recent data indicating that survivability for all recipients receiving their first graft regardless of HLA match is equal to recipients with the best match. The advent of immunosuppressant agents such as cyclosporine is responsible for these results.

It is clear that blacks are at a disadvantage when only HLA matching is used for organ suitability. This only exacerbates the plight of blacks when you consider they as a group are placed on a transplant list less frequently than whites, wait twice as long, and as a race donate fewer organs. I believe there must be greater educational programs to increase organ donations, however changes must be made in the criteria for patient selection of a transplant.

This article does not contain a bibliography



Mary E. Hagle, et al., Racial Perspectives on Kidney Transplant Donors and Recipients, 48 Transplantation 421 (1989).

This article examined the demographic patterns of kidney recipients and donors in the city of Detroit and the state of Michigan. What is most interesting about this study is that kidney donations from Michigan were 13% black and 85% white. Since the population in Michigan is 13% black, the donation rate of blacks in the state perfectly matches their percent population throughout the state. The authors concluded that their data should be utilized in other areas where there is a campaign for organ donations among minorities. The results were from conducting face-to-face education programs in the community with the goal of modifying attitudes. The authors also targeted their audience rather than use a more generalized, nonspecific program.

This article has convinced me that a systematic, educational campaign targeting blacks are effective for increasing the donation rate in the black community. If programs are implemented in other minority neighborhoods, the positive results reported in this article may be duplicated.

This article did not contain a bibliography or footnotes.

 



Jeff Testerman, Should Donors Say Who Gets Organs? St. Petersburg Times, Jan. 9, 1994, at 1A.

This article reported a murdered Ku Klux Klansman's family agreed to donate his organs, but only to people whom were white. This fueled a debate about anti-discrimination and autonomy of choice in organ allocation. Directed donations falls into three categories: (1) The most common is the "living related," donation to a blood relative; (2) the "loving-related," when a donor gives an organ to a loved one not a blood relative; and (3) the gift of an organ to a generic class, illustrated in this case. Most ethicists and transplant center officials deplored the acceptance of the organs based with discriminatory overtones. However, Dr. Clive O. Callender, a prominent black transplant surgeon indicated that have accepted any organ if it meant saving other lives, although he discourages directed donations. The biggest worry is that more and more donors will exercise their right to choose their recipients. The long-term effects could undermine the process of getting organs to the people who need them the most.

If directed donations were based on racial preference, then all Blacks who make up a disproportionate percentage of patients on transplant waiting lists compared to their overall population percentage in the country will be completely shut out from receiving an organ. This is because nearly 90% of the organ donors are white and black donors could not make up the difference in a short period. In the reverse situation, many blacks want to see their organs donated to other blacks. This is racism, too. It should not make a difference what race the recipient is; the goal is to give a recipient a second chance at life. On the other hand, this issue could stimulate needed changes in the current allocation scheme.

This article did not contain a bibliography or footnotes.



A. H. Barnett, David L. Kaserman, The Shortage of Organs for Transplantation:Exploring the Alternatives, 9 No. 2 Issues in Law & Medicine 117 (1993).

This article evaluated the proposed organ procurement system. The author identified two reasons organ donations may not occur. The first is potential donors (or surviving family members) may refuse to donate. Second, the request for donation may fail to occur. The alternative procurement programs dealt with in the article include 1) express donation (the current system); 2) presumed consent; 3) conscription (or organ draft); 4) routine request; 5) compensation; and 6) a market system.

The authors found that when the alternatives were ranked between physicians, they preferred conscription and organ markets the most and express donation the least. Without physicians, the ranking between taxpayers, donors and transplant recipients suggested a preference for an organ market the most and express donations the least. The authors conceded that their approach was imperfect, however they did not consider their findings to be the final word. However, this article did demonstrate that the need for a policy change is evident and needs to be replaced. 



Vernellia R. Randall, Slavery, Segregation and Racism: Trusting the Health Care System Ain't Always Easy! An African-American Perspective on Bioethics, 15 St. Louis U. Pub. L. Rev. 191 (1996).

In this article the Randall asserts that African-Americans have disparate access to organ transplantation. The author found that although European Americans represent only sixty-one percent of the dialysis population, they receive seventy-four percent of all kidney transplants. In contrast, Randall cited 1988 statistics showing African-Americans represented 33.5% of dialysis patients, but only 22.3% of the transplants. She also stated that most authorities believe this disparity is due to a low rate of organ donation in the black community, however Randall asserts the difference is due to the federal mandated program emphasizing antigen matching. She listed two issues confronting African-Americans. One, is lack of equitable access to available organ transplants. The other is based in the black community itself. Randall listed the following factors influencing organ donor reluctance: lack of information; religion; distrust of medical professionals; fear of premature death; racism (a preference to donate only to members of the same race); and the failure of health care professionals to ask African-Americans families for consent in an effective way. 

I agree with Randall's analysis in pointing out the reasons why there is such a disparity in organ allocation between white and black recipients. I think distrust in the black community must be overcome if there is any hope of increasing organ donation. One way of accomplishing this is the creation of outreach programs to educate the community. African Americans must be willing to help participate in solving this problem if they ever hope to improve the current situation. It is also incumbent among health professionals to understand the culture of people unlike themselves, otherwise the scarce resources that already exist will not increase because if a family is never asked to donate an organ then the potential donors' organs are wasted and that helps no one.

This article does contain a bibliography, however it provided extensive footnotes.



Robert A. Hahn, The State of Federal Health Statistics on Racial and Ethnic Groups, 267 JAMA 268, (1992).

This article focussed on assumptions underlying federal health statistics on racial and ethnic groups in the United States. The four assumptions examined were: 1) The categories of 'Race' and 'Ethnicity' are consistently defined and ascertained by Federal data-collection agencies; 2) Racial and ethnic categories are understood by populations questioned; 3) Survey enumeration, participation, and response rates are high and similar for all racial and ethnic populations; and 4) Individual responses to questions of racial and ethnic identity are consistent in different surveys and different times. The authors found several of these assumptions were not supported by the data.

I agree with author where it is asserted the implications of these results are that inconsistencies in data may hinder health research and program development. Race is an important factor towards receiving adequate health care and for clinical studies. Consistent statistics are important for health planning and research. This article demonstrates that statistics about United States health may be misleading.

This article did not contain a bibliography or footnotes. 



Jim Warren, Transplant Community Outraged Farrakhan Says Whites Condone Black-on-Black Killings Because It's a Source of Transplantable Organs, Transplant News May13, 1994, 1994 WL 2974685.

This article reports on a speech delivered by Louis Farrakhan, leader of the Nation of Islam, where he charged that whites do little in combating black-on-black crime because victims provide a supply of organs for whites. Needless to say, these comments were vehemently denied in the transplant community. Alan Hull, MD, vice president of the National Kidney Foundation asserted that race is not a factor in deciding who receives an organ transplant. The reason is that organs are matched according to blood and tissue type. The article reported that in 1992, more than two-thirds of the total number of kidneys transplanted into blacks came from whites. John Arradondo, co-chairman of the NAACP National Health Committee, stated that others hold Farrakhan's views in the black community. This distrust is from the "Tuskegee experiment" where black men were left untreated for syphilis for a government study and from studies reporting unequal treatment between whites and blacks for heart disease.

As usual, Farrakhan is pandering to the fears and distrust of members of the black community. I believe that if he really wanted to help he would work to stop Black-on-Black crime in the black community. In addition, assuming his statement was true, it has had minimal impact on increasing the number of donor organs to the blacks already on transplant waiting lists. Since the current policies place a great deal of emphasis on antigen matching, it would not be whites that would benefit the most, but rather other blacks. I believe Farrakhan's comments could hinder efforts to increase organ donation among blacks and were irresponsible. 

This article did not contain a bibliography or footnotes.



Ian Ayers, et al., Unequal Racial Access to Kidney Transplantation, 46 Vand. L. Rev. 805 (1993).

This article explores whether the negative racial impact of the current mandated antigen matching scheme is justified by higher overall survival rates of kidney transplants. The authors conclude it does not. One reason is the availability of technological advances combating organ rejection. Because of current technology, any federally mandated program allocating organs based on antigen matching, has a weak correlation to patient survival and is outmoded. The authors propose allocation rules that would: (1) eliminate points for patients with two or more mismatched antigens, (2) increase points for time on the waiting list, and (3) award points for patients with rare antigens. The authors also state that a cause of action may exist for a private plaintiff who wish to file a challenge under Title VI to force compliance of private entities receiving public funds. Two targets are the private entity itself (UNOS) and the federal agency responsible for its funding (HHS).

I agree with the authors that allocation policies should not remain static, but rather should be systematically and routinely evaluated to keep pace with ever-changing technological advances. Out of the three proposals listed above I believe the second point would help African-Americans the most since they tend to be on waiting lists twice as long as their white counterparts. On the other hand, I agree that it is important to increase donation in the black community, but donations are not enough to close the wide gap between the scarcity of organ supply and growing demand.

This article does not contain a bibliography, but provided extensive footnotes.



 

ENDNOTES

1. G. Caleb Alexander & Ashwini R. Sehgal, Barriers to Cadaveric Renal Transplantation Among Blacks, Women and the Poor, JAMA, October 7, 1998 at 1148.

2. Id.

3. Robert S. Gaston, et al., Racial Equity in Renal Transplantation, 270 JAMA 1352 (1993).

4. Benjamin Mintz, Analyzing the OPTN Under the State Action Doctrine-Can UNOS's Organ Allocation Criteria Survive Strict Scrutiny? 28 Colum. J. L. & Sol. Probs. 339 (1995)

5. Id.

6. Edgar L. Milford, Organ Transplantation-Barriers, Outcomes, and Evolving Policies, JAMA, Oct. 7, 1998 at 1184.

7. 42 USCA § 1320b-8; Mark F. Anderson, The Future of Organ Transplantation: From Where Will New Donors Come, To Whom Will Their Organs Go? 5 Health Matrix 249, 301 (1995).

8. UNOS(visited Dec. 21, 1998) http://www.unos.org/NEWSROOM/cridata_main.htm

9. Id. See Attached to hardcopy.

10. Vernellia R. Randall, Slavery, Segregation and Racism: Trusting the Health Care System Ain't Always Easy! An African-American Perspective on Bioethics, 15 St. Louis U. Pub. L. Rev. 191 (1996).

11. G. Caleb Alexander & Ashwini R. Sehgal, Barriers to Cadaveric Renal Transplantation Among Blacks, Women and the Poor, JAMA, October 7, 1998 at 1148.'

12. Benjamin Mintz, Analyzing the OPTN Under the State Action Doctrine-Can UNOS's Organ Allocation Criteria Survive Strict Scrutiny? 28 Colum. J. L. & Sol. Probs. 339 (1995).

13. Clive O. Callender, et al., An Assessment of the Impact of the National Minority Organ Tissue Transplant Education Program, 28 Transplantation 394 (1996).

14. Phyllis Coleman, "Brother, Can You Spare A Liver?" Five Ways To Increase Organ Donation, 31 Val. U. L. Rev. 1 (1996).

15. Id.

16. Organ Transplantation, 103 Harv. L. Rev. 1519, 1614 (1990). 

17. Clive O. Callender, Organ Donation in the Black Population: Where Do We Go From Here? 19, No. 2, Suppl.2 Transplantation Proceedings 36 (1987).

18. A. H. Barnett, David L. Kaserman, The Shortage of Organs for Transplantation:Exploring the Alternatives, 9 No. 2 Issues in Law & Medicine 117 (1993).

19. Vernellia R. Randall, Slavery, Segregation and Racism: Trusting the Health Care System Ain't Always Easy! An African-American Perspective on Bioethics, 15 St. Louis U. Pub. L. Rev. 191 (1996). Organ Transplantation, 103 Harv. L. Rev. 1519, 1614 (1990).

20. Luis M. Perez, et al., Organ Donation in Three Major American Cities With Large Latino and Black Populations, 46 transplantation 553 (1988). 

21. Clive O. Callender, Organ Donation in the Black Population: Where Do We Go From Here? 19, No. 2, Suppl.2 Transplantation Proceedings 36 (1987).

22. Benjamin Mintz, Analyzing the OPTN Under the State Action Doctrine-Can UNOS's Organ Allocation Criteria Survive Strict Scrutiny? 28 Colum. J. L. & Sol. Probs. 339 (1995).

23. Id.

24. Id.
 


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Contact Information:
Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu

 

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 03/10/2010

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