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Waiting for a kidney transplant is nerve-wracking. Finding out that your long-sought match has been obtained but thrown in the garbage is worse.

That’s what happened to one patient at the University of Toledo Medical Center, according to The patient’s own brother donated the kidney, but before it could be transplanted, a nurse disposed of it with medical waste. Though the mistake was discovered, the kidney was declared usable.

Medical experts reportedly said that the case was rare and possibly the only instance of its kind in the U.S. While it is not uncommon for transplant surgeries to be halted, such a major surgical error could leave the hospital open to being sued for negligence by the patient’s family.

What complicates the family’s possible decision to sue – in spite of such blatant hospital error – is the UTMC’s position as a state institution. The lawsuit would be handled by the Court of Claims of Ohio, rather than being brought before a jury. While this would not necessarily lessen the chances of the patient and her family being awarded compensation for damages, the judge would have to first rule that the hospital does not have immunity in spite of its status as a state institution. And even if that is achieved, it would not necessarily be worth the family’s time and expense to seek compensation.

Currently, medical caps limit the amount of money a plaintiff can be rewarded for damages if the patient’s main losses were noneconomic, according to state law. At most, compensation can be awarded up to $500,000, but only in cases of extreme physical injury. In all others, the cap is $250,000.

Accidental as it may be, UTMC’s surgical error could well land the hospital in court. But the family would first have to decide whether the long months – and possibly years – of the malpractice lawsuit would be worth the potential payout.

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