This week a jury found transplant doctors not liable for a cancer that a transplant recipient most likely developed through a transplanted kidney. The case raises interesting public policy questions. The doctors and hospital are the only ones able to screen the organs and donors for disease, which might suggest liability should lie with them. Furthermore, it would seem liability lying with the doctors would not decrease the supply of donors because the donors’ incentives to donate would remain essentially unaltered. On the other hand, the cost-benefit judgments here are already hard enough to make. The patient was a thirty-seven year old diabetic.
Drawing on a real-life case involving sexual abuse by a Delaware pediatrician, Professor Alberto Bernabe wonders whether doctors who have a duty to report suspected misconduct of their peers should face liability (liability lying entirely outside the realm of a doctor-patient relationship) when their failure to speak out results in the abusive doctor’s patients being victimized.
