The Washington PostDemocracy Dies in Darkness

Federal judge allows new liver transplant policy to take effect

Doctors in Washington perform a kidney transplant in 2015. The U.S. transplant system has struggled for decades to find a fair way to distribute livers, kidneys and other organs because of a severe donor shortage. (Linda Davidson/The Washington Post)

A federal judge has cleared the way for a new method of distributing livers to transplant patients, a plan that will shift more of the scarce organs to people in metropolitan areas where demand is highest and away from some rural regions where they are easier to obtain.

In a case she called “difficult and wrenching,” U.S. District Judge Amy Totenberg refused Thursday to permanently block new rules for allocating livers that were approved by the federal government in December 2018. In response to a lawsuit, she temporarily halted the plan in May while she considered a request for a permanent injunction.

Totenberg, an Atlanta judge appointed by President Barack Obama, wrote that the government and the nonprofit agency that runs the U.S. transplant system had provided the plaintiffs due process and an opportunity to have their views heard, even if the new policy did not work in their favor.

Those patients and hospitals, in places such as Georgia, Kentucky, Kansas and Virginia, have said they would face the prospect of fewer available organs under the new rules, as more livers are taken by transplant centers in cities with greater demand and higher insurance payments.

Supporters of the change had argued that the current method of distributing most livers in the same regions where they are donated had created a large and arbitrary geographical disparity in the availability of the organs. Recipients in some cities waited much longer, and became much sicker, before receiving a liver than patients in less populated areas, they said.

Put another way, a moderately ill patient in Kansas had a 60 percent chance of receiving a liver within 30 days, while a similar patient in California had just a 1 percent chance, they said.

The U.S. transplant system has struggled for decades to find a fair way to distribute livers, kidneys, hearts and other organs because of a severe shortage of donors. That has created a waiting list of about 113,000 people, even as the number of transplanted organs continues to increase slowly. Nearly 8,900 livers were transplanted in 2019, but about 13,000 people are waiting for one. Most people on the waiting list are seeking kidneys.

The United Network for Organ Sharing, the nonprofit agency that operates the transplant system under contract to the Department of Health and Human Services, said in a statement that Totenberg’s decision “will allow a national liver transplant policy to begin saving more lives and increasing fairness in the donor matching process.” A spokeswoman said the new rules would be implemented in coming weeks.

Motty Shulman, an attorney who sparked development of the plan when he filed suit in 2018 over the geographic-based rules, said in a statement that “the new liver allocation policy will benefit all liver wait list candidates, and we are pleased to be a driving force in bringing equitable organ allocation to patients across the country.”

Attorneys for the plaintiffs declined to comment.

For many years, transplant centers had first shot at livers procured from deceased donors in their regions. The new plan gives patients as far as 500 nautical miles away from a donor’s hospital access to a liver, depending on how sick they are.

When they filed their lawsuit in April, the plaintiffs said they faced a loss of 256 livers as a result, which they said would cause more deaths in their regions.

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