CHAPTER 487

FORMERLY

SENATE SUBSTITUTE NO. 2

FOR

SENATE BILL NO. 313

AS AMENDED BY SENATE AMENDMENT NO. 1 & HOUSE AMENDMENT NO. 2

AN ACT TO AMEND TITLE 16 AND TITLE 24 OF THE DELAWARE CODE RELATING TO ANATOMICAL GIFTS; AND PERMITTING A HOSPITAL TO REQUEST AN ANATOMICAL GIFT UNDER CERTAIN CIRCUMSTANCES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Part II, Title 16 of the Delaware Codc by adding thereto a new chapter. designated as Chapter 27, which new chapter shall be entitled as follows:

"CHAPTER 27. ANATOMICAL GIFTS AND STUDIES"

Section 2. Amend Subchapter VII, Chapter 17, Title 24 of the Delaware Code (§1771 through §1777) by re-designating said subchapter as new Subchapter I (§2701 through §2709). Chapter 27, Part II, Title 16 of the Delaware Codc.

Section 3. Amend Subchapter VIII, Chapter 17, Title 24 of the Delaware Code (§1780 through §1789) by re-designating said subchapter as new Subchapter II, (§2710 through §27I9), Chapter 27, Title 16 of the Delaware Code.

Section 4. Amend Chapter 27, Part II, Title 16 of the Delaware Code by adding thereto a new subchapter, designated as Subchapter III, which new subchapter shall read as follows:

"SUBCHAPTER III. REQUEST FOR CONSENT TO AN ANATOMICAL GIFT

§2721. Requests for Anatomical Gifts

(a) It must be determined that the death of the patient in an acute care general hospital is imminent. On or before the occurrence of death. the hospital shall make a request of the first person or persons available in a class set forth in §2722, in the order of the priority stated. Where no person is available in a prior class at the time of the request, and in the absence of actual notice of consent or denial by the patient or a person in a prior class, the hospital shall make the request for an anatomical gift from the person or persons in the next class. Any consent or refusal relating to the donation of specific parts, organs or tissues need only be obtained from the person or persons in the highest priority class in which there Is a person or persons available.

(b) The hospital medical staff shall develop a protocol for identifying potential organ and tissue donors. The hospital shall require that, when the death of the patient is imminent, the persons designated in 92722 be asked whether the patient has previously agreed to donate any tissues or organs. If not. the appropriate person or persons. under §2722 shall be informed of the option to donate organs and tissues pursuant to the provisions of this Chapter. If such person agrees to the donation of any tissues or organs from the patient, the hospital shall then notify an organ and tissue procurement organization, and cooperate in the procurement of the anatomical gift or gifts.

(c) The protocols developed by the hospitals shall include a mechanism for appropriate training of the personnel making the request for anatomical donation.

(d) Where the hospital has received actual notice that either the patient, or the first person or persons available in a class set forth in §2722, does not wish to make an anatomical gift. the hospital shall not request consent to an anatomical gift.

(c) 'Acute care general hospital' shall mean a hospital that provides diagnostic and therapeutic services to patients for a variety of medical conditions both surgical and non surgical and in which the average length of stay for all patients is less than thirty days.

§2722. Persons Qualified to Consent.

The following persons may, in the order set forth herein. consent to or deny a request for an anatomical gift of any specific parts. organs or tissues of the body of a patient in a terminal condition and incompetent or a deceased person who has not made an anatomical gift. Such consent or denial shall be in writing. If there is a conflict among members of a class, the denial will control:

(a) the spouse of the patient or decedent;

(b) a son or daughter of the patient or decedent. If such son or daughter is eighteen years of age or older;

(c) either parent of the patient or decedent;

(d) a brother or sister of the patient or decedent, if such brother or sister is eighteen years of age or older: and

(e) the guardian of the patient or decedent at the time of the decedent's death.

§2723. Certification of Donation.

Where an anatomical gift is requested in accordance with the provisions of this Subchapter, the hospital shall complete a 'Certificate of Request of an Anatomical Gift,' on a form promulgated by the Bureau of Vital Statistics. Said certificate shall include a statement to the effect that a request for consent to an anatomical gift has been made; a statement whether or not such consent was granted; the name of the person granting or refusing such request, and the relationship of such person to the patient. Where a request is made pursuant to this Subchapter, such request and its disposition shall be noted in the patient's medical record, and on the death certificate.

§2724. Exceptions.

Where. in the opinion of the attending physician, based on medical criteria, a request under this Subchapter would not yield a donation which would be suitable, a request for an anatomical donation is not required. The hospital shall, however, keep a record of each instance in which a request under this Subchapter was not made, and the reason such request was not made.

§2725. Declaration Concerning Medical Treatment.

Consent to an anatomical gift under this statute shall not override an individual's declaration regarding medical treatment under 16 Del. C. §2501 et seq.

§2726. Liability.

A hospital or physician who acts in good faith in accord with the terms of this Subchapter is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act.

§2727. Effective Date.

This Act shall become effective on January 1, 1987."

Approved July 9, 1986.