Chapter 201 Oregon Laws 1999
Session Law
AN ACT
HB 2936
Relating to anatomical
gifts; amending ORS 97.130, 97.950, 97.954, 97.956 and 97.958; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 97.950 is amended to read:
97.950. As used in ORS 97.950 to 97.964:
(1) "Anatomical gift" means a donation of all or part
of a human body to take effect upon or after death.
(2) "Capable" has the meaning given in ORS 127.505
(13).
(3) "Decedent" means an individual who is dead as
defined under ORS 432.300. "Decedent" includes a stillborn infant or
fetus.
(4) "Document of anatomical gift" means a driver
license or identification card [indorsed] endorsed with an appropriate code, a
will, an advance directive or other signed document used to make an anatomical
gift.
(5) "Donor" means an individual who makes an
anatomical gift of all or part of that individual's body.
(6) "Enucleator" means a licensed embalmer, apprentice embalmer or eye bank
technician that has completed a course in eye enucleation and has a certificate
of competence from an agency or organization designated by the Board of Medical
Examiners for the purpose of providing the training.
(7) "Hospital" means a facility licensed, accredited
or approved as a hospital under the laws of any state or a facility operated as
a hospital by the United States Government, a state or a subdivision of a
state.
(8) "Identification card" means the card described in
ORS 807.400 or a comparable provision of the motor vehicle laws of another
state.
(9) "Part" means an organ or part thereof, tissue,
eye or part thereof, bone, artery, blood, fluid or other portion of a human
body.
(10) "Physician" means an individual licensed or
otherwise authorized to practice medicine under the laws of any state.
(11) "Procurement organization" means an agency
licensed, accredited or approved under the laws of any state for the
acceptance, procurement, distribution or storage of human bodies or parts.
(12) "Technician" means an individual who is employed
and authorized by a procurement organization to remove or process a part.
SECTION 2.
ORS 97.954 is amended to read:
97.954. (1) A [majority
of persons] person within the
first applicable listed class among the following listed classes that is
available at the time of death or, [if
there is no majority, the eldest willing and able member of that class,] in
the absence of actual notice of a contrary direction by the decedent or actual
notice of opposition by a [majority of
the members or the eldest willing and able] member of the same class or a member of a prior class, may make an
anatomical gift of all or a part of the body of a decedent for any authorized
purpose:
(a) The spouse of the decedent;
(b) A son or daughter of the decedent 18 years of age or older;
(c) Either parent of the decedent;
(d) A brother or sister of the decedent 18 years of age or
older;
(e) A guardian of the decedent at the time of death;
(f) A person in the next degree of kindred to the decedent;
(g) The personal representative of the estate of the decedent;
(h) The person nominated as the personal representative of the
decedent in the decedent's last will; or
(i) A public health officer.
(2) No person, hospital or procurement organization shall
accept a gift made by an individual under subsection (1) of this section if:
(a) An individual in a prior class is available at the time of
death to make an anatomical gift;
(b) The individual proposing to make an anatomical gift knows
of a refusal or contrary indications by the decedent; or
(c) The individual proposing to make an anatomical gift knows
of an objection to making an anatomical gift by another member of the
individual's class or a member of a prior class.
(3) An anatomical gift by an individual authorized under
subsection (1) of this section must be made by a document of anatomical gift
signed by the individual or the individual's telegraphic, recorded telephonic
or other recorded message, or other form of communication from the individual
that is contemporaneously put in written form and signed by the recipient of
the communication.
(4) An anatomical gift by an individual authorized under
subsection (1) of this section may be revoked by any member of the same or a
prior class if, before procedures have begun for the removal of a part from the
body of the decedent, the physician, technician or enucleator removing the part
knows of the revocation.
SECTION 3.
ORS 97.956 is amended to read:
97.956. (1) A medical examiner may release and permit the
removal of a part from a body within the examiner's jurisdiction for
transplantation, therapy or research if:
(a) The examiner has received a request for the part from a
hospital, physician or procurement organization;
(b) The examiner does not know of a refusal or contrary
indication by the decedent or objection by a person [or majority of persons] having priority to act as listed in ORS
97.954 (1);
(c) The person requesting the part has made a reasonable effort
to contact the person [or majority of
persons] having priority to act as listed in ORS 97.954 (1);
(d) The removal of the part is by a physician or technician or,
in the case of eyes, by an enucleator, physician or technician;
(e) The removal does not interfere with any autopsy or
investigation;
(f) The removal is performed in accordance with accepted
medical standards; and
(g) The person performing the removal also performs a
restoration of the removed part, if appropriate.
(2) If the body is not within the jurisdiction of the medical
examiner, the local public health officer may release and permit the removal of
a part from a body in the local public health officer's custody for
transplantation, therapy or research, if the requirements of subsection (1)(a)
to (g) of this section are met.
(3) An official releasing and permitting the removal of a part
shall retain, in the permanent death record of the decedent, documentation of
the person making the request, the date and purpose of the request, and the
person to whom it was released.
(4) For purposes of this section, "reasonable effort"
means:
(a) The person requesting the part has attempted to contact the
person [or majority of persons]
having priority to act as listed in ORS 97.954 (1), following notification of
the death by the medical examiner or other authority or medical facility, and
to obtain that person's [or majority's]
consent or objection to the removal of the part requested;
(b) Unless the elapsed time from the notification of death
would render the part useless [or] for the purpose intended, any attempt
described in paragraph (a) of this subsection that was unsuccessful has been
repeated at least two additional times by telephone; and
(c) The attempts shall be documented by the person requesting
the part, and the documentation shall be maintained in that person's permanent
file.
SECTION 4.
ORS 97.958 is amended to read:
97.958. (1) If, at or near the time of death of a hospitalized
patient, there is no medical record that the patient has [made] authorized an
anatomical gift, the hospital administrator or a representative designated by
the administrator shall discuss with the patient and family members the option
to make or refuse to make an anatomical gift. The administrator or
representative may request the making of an anatomical gift under ORS 97.952 or
97.954. The request must be made with reasonable discretion and sensitivity to
the circumstances of the family. A request is not required if the gift is not
suitable, based upon accepted medical standards. [A majority of persons within the first applicable listed class among
the classes listed in ORS 97.954 (1) that is available at the time of death or,
if there is no majority, the eldest willing and able member of that class, in
the absence of actual notice of contrary indication by the decedent or the
majority of members or the eldest willing and able member in a prior class, may
consent to making an anatomical gift of all or any part of the decedent's body.]
An entry must be made in the medical record of the patient, stating the name
and affiliation of the person making the request and the name, response and
relationship to the patient of the individual to whom the request was made. The
Health Division shall adopt rules to implement this subsection.
(2) The following persons shall, circumstances permitting, make
a reasonable search for a document of anatomical gift or other information
identifying the bearer as a donor or as an individual who has refused to make
an anatomical gift:
(a) A law enforcement officer, firefighter, paramedic or other
emergency rescuer who finds an individual whom the rescuer believes to be dead
or near death; and
(b) A hospital, upon the admission of an individual at or near
the time of death, if there is not immediately available any other source of
that information.
(3) If a document of anatomical gift is located by the search
required by subsection (2)(a) of this section, and the individual is taken to a
hospital, the hospital must be notified of the contents of the document, if
any, and the document must be sent to the hospital.
(4) If, at or near the time of death of a patient, a hospital
knows that an anatomical gift has been [made]
authorized under ORS 97.952 or
97.954, or a release and removal of a part has been permitted under ORS 97.956,
or that a patient or an individual in transit to the hospital is identified as
a donor, the hospital shall notify an appropriate procurement organization. The
hospital shall cooperate in the implementation of the anatomical gift or
release and removal of a part.
(5) A person who fails to discharge the duties imposed by this
section is not subject to criminal or civil liability.
SECTION 5.
ORS 97.130 is amended to read:
97.130. (1) Any individual of sound mind who is 18 years of age
or older, by completion of a written signed instrument or by preparing or
prearranging with any funeral service practitioner licensed under ORS chapter
692, may direct any lawful manner of disposition of the individual's remains.
Except as provided under subsection (6) of this section, disposition directions
or disposition prearrangements that are prepaid or that are filed with a
funeral service practitioner licensed under ORS chapter 692 shall not be
subject to cancellation or substantial revision.
(2) A [majority of
persons] person within the first
applicable listed class among the following listed classes that is available at
the time of death or, [if there is no
majority, the eldest willing and able member of that class,] in the absence
of actual notice of a contrary direction by the decedent as described under
subsection (1) of this section or actual notice of opposition by completion of
a written instrument by a [majority of
the members or the eldest willing and able] member of the same class or a member of a prior class, may direct any lawful
manner of disposition of a decedent's remains by completion of a written
instrument:
(a) The spouse of the decedent.
(b) A son or daughter of the decedent 18 years of age or older.
(c) Either parent of the decedent.
(d) A brother or sister of the decedent 18 years of age or
older.
(e) A guardian of the decedent at the time of death.
(f) A person in the next degree of kindred to the decedent.
(g) The personal representative of the estate of the decedent.
(h) The person nominated as the personal representative of the
decedent in the decedent's last will.
(i) A public health officer.
(3) The decedent or any person authorized in subsection (2) of
this section to direct the manner of disposition of the decedent's remains may
delegate such authority to any person 18 years of age or older. Such delegation
shall be made by completion of the written instrument described in subsection
(7) of this section. The person to whom the authority is delegated shall have
the same authority under subsection (2) of this section as the person
delegating the authority.
(4) If a decedent or the decedent's designee issues more than
one authorization or direction for the disposal of the decedent's remains, only
the most recent authorization or direction shall be binding.
(5) A donation of anatomical gifts under ORS 97.952 or 97.954
shall take priority over directions for the disposition of a decedent's remains
under this section only if the person making the donation is of a priority
under subsection (1) or (2) of this section the same as or higher than the
priority of the person directing the disposition of the remains.
(6) If the decedent directs a disposition under subsection (1)
of this section and those financially responsible for the disposition are
without sufficient funds to pay for such disposition or the estate of the
decedent has insufficient funds to pay for the disposition, or if the direction
is unlawful, the direction shall be void and disposition shall be in accordance
with the direction provided by those persons given priority in subsection (2)
of this section and who agree to be financially responsible.
(7) The signature of the individual shall be required for the
completion of the written instrument required in subsection (3) of this
section. The following form or a form substantially similar shall be used by
all individuals:
___________________________________________________________________
APPOINTMENT OF PERSON
TO MAKE DECISIONS
CONCERNING DISPOSITION
OF REMAINS
I, _______, appoint _______, whose address is ___________ and
whose telephone number is (___) _______, as the person to make all decisions
regarding the disposition of my remains upon my death for my burial or
cremation. In the event _________ is unable to act, I appoint _________, whose
address is _____________ and whose telephone number is (___) _______, as my
alternate person to make all decisions regarding the disposition of my remains
upon my death for my burial or cremation.
It is my intent that this Appointment of Person to Make
Decisions Concerning Disposition of Remains act as and be accepted as the
written authorization presently required by ORS 97.130 (or its corresponding
future provisions) or any other provision of Oregon Law, authorizing me to name
a person to have authority to dispose of my remains.
DATED this ____ day of _________, ____.
__________________
(Signature)
DECLARATION OF WITNESSES
We declare that _________ is personally known to us, that
he/she signed this Appointment of Person to Make Decisions Concerning
Disposition of Remains in our presence, that he/she appeared to be of sound
mind and not acting under duress, fraud or undue influence, and that neither of
us is the person so appointed by this document.
Witnessed By:
___________ Date: __________
Witnessed By:
___________ Date: __________
___________________________________________________________________
(8) Subject to the provisions of ORS 97.950 to 97.964, if
disposition of the remains of a decedent has not been directed and authorized
under this section within 10 days after the date of the death of the decedent,
a public health officer may direct and authorize disposition of the remains.
SECTION 6. This 1999 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 1999 Act takes effect on its passage.
Approved by the Governor May 28, 1999
Filed in the office of Secretary of State May 28,
1999
Effective date May 28, 1999
__________