An African American man is seeking millions of dollars in damages and a better position on the kidney transplant waiting list in a lawsuit that claims an algorithm used in determining priority for organs is biased against black people, and that they are less likely to be wait-listed for kidney transplants than white people.
Anthony Randall last week sued an affiliate of the Cedars-Sinai Hospital in Los Angeles, where he is listed as a transplant patient, and the United Network for Organ Sharing (UNOS), the non-profit organisation that operates the US transplant system.
Randall, a Los Angeles barber who can no longer work because of kidney disease, receives dialysis treatments thrice weekly and has been waiting more than five years for a kidney, also wants a federal court to allow him to represent a class of 27 500 black patients, whom, he argues, have been similarly disadvantaged.
The Washington Post reports that his suit contends that all have suffered “economic injuries” including dialysis and other medical costs.
Both UNOS and Cedars-Sinai have in recent months dropped the use of the part of the formula Randall cites in his lawsuit. In June, the board of directors of the transplant system determined that inclusion of a “modifier for patients identified as black … has led to a systemic under-estimation of kidney disease severity for many black patients”.
“Specifically in organ transplantation, it may have negatively affected the timing of transplant listing, or the date at which candidates qualify to begin waiting time for a transplant.”
In January, UNOS instructed hospitals to stop using that part of the algorithm and to notify black patients waiting for kidneys that they might be eligible for adjustments of their “accrued wait time”, a critical factor in determining the order of potential recipients for kidneys, which are in short supply. Randall says he might have qualified for a kidney had those adjustments been made sooner.
Randall’s lawsuit notes that Cedars complied with UNOS’ directive on 27 March, when it said it would begin a review that could take several months, but he asserts that neither the hospital nor the transplant organisation is moving quickly enough.
The lawsuit is the latest effort to challenge the policies and functioning of the nation’s troubled organ transplant system in recent years. Two similar lawsuits were filed in federal courts in New York and Washington in 2021 and 2022.
Last month, the government announced plans to overhaul the entire transplant system, including breaking up the monopoly UNOS has had to operate it since 1986.
Last week Congress took a step toward aiding the government’s planned retooling, introducing legislation that would allow separating the tasks UNOS performs and seeking competitive bids from other organisations that want to perform them.
The Bill would amend the 1984 National Organ Transplant Act, which contains language that has kept the system in UNOS’ hands. It would allow tasks to be performed by for-profit or non-profit organisations.
About 104 000 people remain on the transplant waiting list, most of them seeking kidneys. Depending on the calculation, 17 to 33 of them die daily waiting for kidneys, livers, lungs, hearts and other organs.
There is widespread agreement that the system is racially inequitable. Blacks are three times as likely as whites to suffer end-stage renal disease but much less likely to be put on the transplant wait list or to receive a kidney.
In a 2022 report, the National Academies of Sciences, Engineering and Medicine cited research showing that blacks are less likely to be rated appropriate candidates for kidney transplants than whites; 37% less likely to be referred for transplant evaluation before they need dialysis; and wait a median of 727 days for kidneys after placement on the waiting list, while whites wait a median of 374 days.
Randall’s lawsuit addresses another problem. Accrued time on the wait list is part of the calculus that determines which patients get the first shot at kidneys when they become available. Placement on the list is partly dependent on falling below a threshold that indicates poor kidney function, according to his lawsuit.
Research that is no longer considered credible held that blacks would reach that threshold sooner than whites because they have greater muscle mass and produce more of the amino acid creatine, which is part of one measure used to determine how poorly kidneys are functioning. In crafting the algorithm that powers kidney transplant priorities, the transplant system applied a 16% to 18% “modifier” to balance out that supposed advantage for blacks.
Randall contends that the formula has disadvantaged him and other blacks for decades. He asserts that in December he was second in line for a kidney and was called to the hospital and prepared for surgery, but ended up not getting it. He says he might have received the organ had his true wait time been part of the calculation.
He is seeking more than $5m for himself and other blacks on the kidney transplant wait list, as well as the immediate recalculation of his wait time, to put him in a better position to receive a kidney as soon as one becomes available.
organ transplant
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Why I gave my kidney to a stranger — and why you should, too