SB2776.DOC

SECTION 1. The purpose of this Act is to save lives and better the quality of life of Hawaii's people who need transplants of organs and better the quality of medical education in, Hawaii by ensuring that the proper individuals and entities fulfill their obligation to effectuate anatomical gifts.

SECTION 2. Section 327-11, Hawaii Revised Statutes, is amended to read as follows:

"[[]§327-11[]] Persons that may receive anatomical gift; purpose of anatomical gift. (a) An anatomical gift of a body or body part may be made to the following persons:

(1) A named hospital, accredited medical school, dental school, college, university, or organ procurement organization, or other appropriate person for research or education;

(2) A named individual designated by the person making the anatomical gift if the individual is the recipient of the body part; or, if the body part for any reason cannot be transplanted into the individual, the body part shall pass in accordance with subsection (f) in the absence of an express, contrary indication by the person making the anatomical gift; or

(3) A named eye bank or tissue bank.

(b) If an anatomical gift of one or more specific body parts or of all body parts is made in a document of gift that does not name a person described in subsection (a) but identifies the purpose for which an anatomical gift may be used, the following rules shall apply:

(1) If the body part is an eye and the gift is for transplantation or therapy, the gift shall pass to the appropriate eye bank;

(2) If the body part is tissue and the gift is for transplantation or therapy, the gift shall pass to the appropriate tissue bank;

(3) If the body part is an organ and the gift is for transplantation or therapy, the gift shall pass to the appropriate organ procurement organization as custodian of the organ; and

(4) If the body part is an organ, an eye, or tissue and the gift is for research or education, the gift shall pass to the appropriate procurement organization.

(c) For the purpose of subsection (h), if there is more than one purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, the gift shall be used for transplantation or therapy if suitable for those purposes and, if the gift cannot be used for transplantation or therapy, the gift may be used for research or education.

(d) If an anatomical gift of one or more specific body parts is made in a document of gift that does not name a person described in subsection (a) and does not identify the purpose of the gift, the decedent's body parts may be used only for transplantation or therapy, and the gift shall pass in accordance with subsection (f).

(e) If a document of gift specifies only a general intent to make an anatomical gift by words such as "donor", "organ donor", or "body donor", or by a symbol or statement of similar import, the decedent's body parts may be used only for transplantation or therapy, and the gift shall pass in accordance with subsection (f).

(f) For purposes of subsections (a)(2), (c), and (d), the following rules shall apply:

(1) If the body part is an eye, the gift shall pass to the appropriate eye bank;

(2) If the body part is tissue, the gift shall pass to the appropriate tissue bank; and

(3) If the body part is an organ, the gift shall pass to the appropriate organ procurement organization as custodian of the organ.

(g) An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under subsection (a)(2), shall pass to the organ procurement organization as custodian of the organ.

(h) If an anatomical gift does not pass pursuant to subsections (a) through (g), or the decedent's body or body part is not used for transplantation, therapy, research, or education, custody of the body or body part shall pass to the person under obligation to dispose of the body or body part.

(i) A person may not accept an anatomical gift if the person knows that the gift was not effectively made under section 327-5 or 327-10 or if the person knows that the decedent made a refusal under section 327-7 that was not revoked. For purposes of this subsection, if a person knows that an anatomical gift was made on a document of gift, the person is deemed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift.

(j) Except as otherwise provided in subsection (a)(2), nothing in this part shall affect the allocation of organs for transplantation or therapy.

(k) Notwithstanding any provision in the Hawaii Revised Statutes; the charters or ordinances of any county government; the Hawaii administrative rules; the administrative rules of any county; or the provisions, memoranda, documents, or writings of any part of the state government, or any county government, if an anatomical gift provided for in this section passes to any entity or organization set forth in subsection (a)(1) or (3), or individual who is an employee, agent, or affiliate in any manner of that entity or organization, and that entity, organization, employee, or affiliate fails in any manner to retrieve that anatomical gift through medical means, including surgical means, or any other means, then each entity, organization, employee, agent, or affiliate shall each be individually liable to pay a statutory damages amount of $500,000 for each incident in which a failure to retrieve occurs, and shall also have their licenses to perform in the medical field revoked, after being afforded due process of law. Any individual or entity who is on a wait list to receive an anatomical gift shall be entitled to bring suit in any state circuit court that has venue over the offending entity, organization, employee, agent, or affiliate, to enforce the foregoing sanctions, and shall be entitled to the payment of reasonable attorney's fees and legal costs whether they prevail or not in the suit, with the attorney's fees and legal costs to be paid by the defendant; provided that attorney's fees and legal costs shall not be awarded if the court makes a specific finding that the lawsuit was brought in bad faith."

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2776
TWENTY-FIFTH LEGISLATURE, 2010
STATE OF HAWAII