‘Banging his legs and crying’: Dead? Or just ‘mostly’ dead?

Congress Confronts Failures in Organ Procurement Oversight

Until recently, anyone who believed there was anything fishy about the U.S. organ donation system was labeled a conspiracy theorist. Yet now the old adage: “What’s the difference between conspiracy and truth? About six months,” rings true again, as so-called conspiracy theorists have been proven right by none other than the federal Health and Resources Services Administration (HRSA) itself.

The “conspiracy?” That organ procurement organizations (OPOs) and hospitals declare living individuals dead in order to harvest their organs.

The truth? In March 2025, the federal Health Resources and Services Administration reported in its investigation of a procurement organization called Network for Hope that there had been dozens of instances where organ retrieval was nearly begun despite the donors exhibiting signs of life.

The investigation was started in response to the infamous case of T. J. Hoover. Hoover, a resident of Kentucky (which along with parts of Ohio and West Virginia is exclusively served by Network for Hope) had overdosed on drugs in October 2021 and been declared brain dead. His body was being prepped for organ retrieval when he regained consciousness on the operating table, banging his legs and crying. Thankfully, the process was halted, but not without significant pressure to continue by the OPO representative in the room, according to doctors who testified.

Hoover’s story is apparently one among many. HRSA reviewed 351 donation-authorized cases and found that 73 patients showed neurological activity and at least 28 patients may not have been deceased when the procurement process began.

These shocking revelations led to a hearing last week by the House Energy and Commerce Subcommittee on Oversight and Investigations. Dr. Raymond Lynch, chief of the organ transplant branch within HRSA, testified to Congress regarding the safety and efficiency of the organ donation process.

Lynch admitted that the current method of operation has serious issues, but argued that the root cause is a system that grants a quasi-monopoly to individual procurement operators. Only a single contractor per region can service the OPTN, which is the federal Organ Procurement and Transplantation Network that connects donated organs with patients needing transplants. Over-reliance on the OPOs has impeded “meaningful government oversight,” according to Lynch.

Members of both parties peppered Lynch with questions about the practices of OPOs and the OPTN. Rep. Diana DeGette, a Colorado Democrat, referenced a New York Times article revealing the growing use of “circulatory death,” which is defined as the irreversible cessation of circulatory and respiratory functions, even though in some cases circulatory death is reversible through proper resuscitation. Nonetheless, using this definition to determine the end of life allowed hospitals to harvest organs faster, leading to concerns about a grim conflict of interest.

Compounding this issue is pressure from OPO representatives, who are required to be present for donation. DeGette asserted that doctors may look to OPO representatives as “experts” and feel pressured to certify death. While Lynch did not affirm DeGette’s concerns, he conceded that “increased emphasis on performance in any area of medicine is not an excuse for noncompliance.”

Lynch stressed that it is possible that a “good faith” assessment of death could be wrong, and that often, doctors are doing their best in a difficult and fast-paced environment. Rep. Gary Palmer  wasn’t having it. “There’s clearly things that happened that I think could count as euthanasia,” said the Alabama Republican. In response, Lynch stressed that the HRSA has a Corrective Action Plan (CAP) in place for OPOs and the OPTN, with its authority stemming from Congress.

The renewed interest in Congress follows passage of the Securing the OPTN Act, signed into law by President Biden two years ago. This new law the OPTN turns a single-vendor system into a multiple-vendor system, meaning that  multiple OPOs can now service the same region. It also establishes a separate OPTN board from any other contractors to ensure transparency, removes the $7 million HRSA funding cap and allocates more money for modernization, and requires a GAO review of the OPTN’s financial history.

The HRSA created its CAP to better implement the terms of the act. The CAP lists several important reforms: Any staff member will be allowed to halt procedures due to safety concerns; the OPTN must now monitor and report safety-related halted donations; the HRSA now has authority to decertify OPOs not meeting its standards; and the Network for Hope and any other implicated OPO must implement minimum safety standards, better documentation, clearer donor eligibility criteria, and family communication plans within six months.

While the reforms listed in the CAP are unquestionably needed, a big question remains: Will they truly solve the problem? It will be an uphill fight. The CAP doesn’t address the issue of ambiguous death certification, such as circulatory death. Nor does it address the institutional incentives that push OPOs to aggressively advocate for more organ donations. CAPs tend to focus more on metrics rather than ethical gray zones, meaning that the potential of harvesting the organs of live patients is still a possibility.

What needs to change to ensure that what T. J. Hoover endured – or worse – never happens again? Those pushing for further reform believe that the Uniform Determination of Death Act should be further strengthened so that that hospitals in this country operate by uniform and widely accepted standards for certification of death. Independent third-party certification of death might be a brake on misplaced priorities. Finally, some believe that harvesting organs should not be allowed until all brain activity has ceased.