Second Child Sues Kathleen Sebelius for Lung Transplant

| by Sarah Fruchtnicht
article imagearticle image

An 11-year-old boy from the Bronx who has cystic fibrosis won a court order Thursday making him eligible to receive a transplant of adult lungs based on his need instead of his age.

The ruling was made by U.S. District Judge Michael Baylson, the same judge who issued a temporary restraining order Wednesday for a 10-year-old Pennsylvania girl who also has cystic fibrosis. Sarah Murnaghan waited three months for a lung transplant because of a federal law that requires adult lungs be offered to adults first, regardless of the severity of the illness, before they can be offered to children under the age of 12. The restraining order blocked U.S. Health and Human Services Secretary Kathleen Sebelius from enforcing that rule. Now 11-year-old Javier Acosta will have that same chance.

The complaint filed by his mother, Milagros Martinez, said the “Under 12 Rule” discriminates against children. The complaint stated without a lung transplant, Javier will likely die before his twelfth birthday in August, NBC News reported.

“Javier’s older brother, Jovan, also had cystic fibrosis,” said Stephen Harvey, an attorney representing Martinez, in a statement. “Jovan died on Aug. 15, 2009, while waiting for a liver and lung transplant. He was 11 years old, the same age as Javier is now.”

“Federal law requires equitable allocation of donated organs, but under the policies currently in effect, that requirement is not satisfied for children under 12, including Javier Acosta,” the ruling states. “The pool of lungs donated from adults is more than 50 times larger than the pool of lungs donated from children. Javier’s doctors have decided that transplantation of a set of lungs from an adult is appropriate in his case.”

Because there are fewer organs available for children under 12, who are usually smaller than adults and cannot always use adult-sized organs, children usually wait longer for transplants. The existing lung allocation system was approved in 2005, replacing a first-come, first-served system. Under the new plan, deaths on the waiting list decreased by 40 percent, according to transplant experts. 

On June 4, Sebelius told Congress she would not issue a waiver to the Murnaghan’s to forgo the under 12 policy because there are people just as sick waiting for a lung transplant  three in Philadelphia alone. Javier is currently in a Philadelphia hospital and could be one of the patients to whom Sebelies referred.

In a letter to the Organ Procurement and Transplantation Network on Thursday, Sebelius asked them to comply with Baylson’s ruling and allow Murnaghan to enter the organ candidate system as if she were 12 years old.

The Organ Procurement and Transplantation Network will review its transplant guidelines on Monday.

Sources: NBC News, Bloomberg