Donated brain thrown out; lawsuit against Children's Wisconsin dismissed
Donated brain thrown out; lawsuit dismissed
Children's Wisconsin is off the hook after mistakenly throwing out a donated brain. On Monday, Nov. 17, a Milwaukee County judge dismissed a lawsuit filed by the donor's parents.
MILWAUKEE - Children's Wisconsin is off the hook after mistakenly throwing out a donated brain. On Monday, Nov. 17, a Milwaukee County judge dismissed a lawsuit filed by the donor's parents.
Groundbreaking gene therapy
What we know:
When Ashtyn Fellenz was just 3 years old, she underwent groundbreaking gene therapy. That helped her survive a deadly childhood disease into her 20s.
Ashtyn Fellenz
When Fellenz died, her parents agreed to donate her brain for scientific research.
"It was a big part of her legacy," said Scott Fellenz, Ashtyn's father.
Donated brain accidentally tossed
Dig deeper:
In December 2024, Children's Wisconsin performed the autopsy, preserving Ashtyn's brain in hemispheres. But somewhere along the way, Children's Wisconsin admitted it accidentally threw half of her brain away.
"It was literally like losing Ashtyn all over again," Scott Fellenz said.
Dr. Paola Leone said it was the most important half for research.
"It’s irreplaceable, irreplaceable," said Dr. Paola Leone, Rowan University.
In May, the Fellenz family sued the hospital.
Case in court
What we know:
On Monday, Nov. 17, an attorney for Children's Wisconsin asked a judge to throw the case out too.
"It’s our position that there is no viable claim," said Michael Johnson, attorney for Children's Wisconsin.
FREE DOWNLOAD: Get breaking news alerts in the FOX LOCAL Mobile app for iOS or Android
According to the hospital, the family "relinquished all rights" to the tissue the moment it was removed from their daughter's body, a removal they agreed to.
Fellenz family reaction
What they're saying:
"Would you have given that consent if you knew they were just going to go throw it away?" asked FOX6 Investigator Bryan Polcyn.
"Not at all, I would’ve taken more time with my daughter when she passed," said Arlo Fellenz, Ashtyn's mother.
Ashtyn Fellenz
The family's attorney, James Gende, said the hospital breached its duty.
"The consent was specifically for a purpose, not for it to be routinely discarded," Gende said.
The ruling
Big picture view:
Judge Tim Witkowiak expressed sympathy on Monday. But ultimately, he ruled that organ donors retain no rights to the donated tissued.
"It’s one of the saddest things I’ve seen," Judge Witkowiak said. "Once an organ donor gives a heart or anything like that, they don’t have any control over who that goes too."
Gende said the ruling could send a chilling message.
SIGN UP TODAY: Get daily headlines, breaking news emails from FOX6 News
"If family members understand that their donation can be routinely discarded, why would they forfeit those final moments?" Gende said.
Ashtyn Fellenz
Still, Ashtyn's parents said they plan to keep fighting for her legacy.
"This is a rough road, but I’m not willing to give up yet," said Arlo Fellenz.
Possible appeal
What's next:
The Fellenz family's attorney said this is a unique case that made it difficult to find comparable cases for the purposes of legal argument. He said they are essentially trying to carve out a new cause of action in organ donation law.
Early indications are the family intends to take the case to the Wisconsin Court of Appeals.
Donated brain thrown out; Children's Wisconsin 'profoundly sorry'
Children's Wisconsin says it accidentally ‘discarded’ the frozen portion of a young woman's donated brain.
The Source: Information in this post was produced by FOX6 Investigators.