After being informed by a hospital in Meridian, Mississippi, that Paula Denison was dead, her family agreed to donate their mother’s organs. Accordingly, she was transported to a transplant facility in Flowood, Mississippi, to begin the organ-donation process. But as time passed, it became clear that Denison indeed was not dead. Upon this discovery, she was transported back to the hospital in Meridian. The following day, Denison was again declared dead.
Denison’s daughter Brooke Denison and Denison’s Estate filed separate complaints against multiple parties, including Mississippi Organ Recovery Agency, Inc. (MORA), Dr. Shirley Schlessinger, and Dr. Dustin Shea Allen.
In the Estate’s case, MORA and Dr. Schlessinger moved for dismissal, claiming that the Estate’s complaint failed to state a claim because they were entitled to immunity under the Revised Mississippi Uniform Anatomical Gift Act (UAGA). In Brooke’s case, each party moved for dismissal, claiming that the complaint failed to state a claim either due to immunity or bystander recovery. In each of their responses to the motions to dismiss, the Estate and Brooke attached medical records as exhibits.
Ultimately, the trial court (1) granted MORA’s and Dr. Schlessinger’s motions to dismiss on the basis that the Estate’s complaint failed to state a claim upon which relief could be granted due to the UAGA’s immunity provision and (2) granted the motions to dismiss in Brooke’s individual case because the complaint did not allege sufficient facts necessary to establish bystander liability. The Estate and Brooke appealed, and the Supreme Court of Mississippi consolidated the two appeals.
The Mississippi Supreme Court stated in its April 16, 2026 En Banc decision: “We find that the trial court committed reversible error by not converting MORA’s motion to dismiss into a motion for summary judgment. But we find that the trial court properly dismissed Brooke’s individual suit for failure to state a claim under a theory of bystander liability.”
Bystander Claim
The Mississippi Supreme Court has adopted a multi-factor test for analyzing bystander claims: In determining, whether defendant should reasonably foresee the injury to plaintiff, or, whether defendant owes plaintiff a duty of due care, the courts take into account such as factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.
The Mississippi Supreme Court stated in the case it was deciding: “Taking the complaint as true, Brooke was not located near the scene of the incident because she was not at the MORA facility, thus failing prong one of the Entex test; she did not “contemporaneous[ly] observ[e] . . . the [incident]” for this same reason … Brooke learned about the injuries to Denison after the fact, which also fails prong two of the Entex test. As to the claim of the initial pronouncement of death, while Brooke and Denison were at Anderson, the “shock” of the alleged negligence did not occur until later and fails prong two of Entex. … The res ipsa loquitur and battery, outrage, and intentional-torts allegations also fail prongs one and two of Entex for the same reasons. Therefore, taking the allegations in the complaint as true, this Court finds that any of Brooke’s claims in the nature of bystander liability fail the Entex test, and the trial court properly dismissed them.”
“In addition to being a first impression for this Court, it appears that the granting of immunity under the UAGA may be dependent upon certain factual findings—whether the defendants acted in good faith and, without notice of revocation, in reliance upon the authorization made under the UAGA … To clarify, this Court is not making a ruling concerning immunity under the UAGA. Rather, we are reversing the judgment of the trial court due to a procedural error, i.e., failure to convert the Estate’s motion to dismiss into a motion for summary judgment after improperly considering materials outside the complaint.”
“In order to recover for injuries to her mother, Brooke would have had to recover under Mississippi’s wrongful-death statute or under a theory of bystander liability. Brooke does not bring a wrongful-death action, and her allegations fail the Entex test for bystander liability. Therefore, Brooke has no actionable claims, and we affirm the trial court’s decision to properly dismiss them.”
If you or a loved one have been injured as a result of organ donation negligence in Mississippi or in another U.S. state, you should promptly find a Mississippi medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your organ donation malpractice claim for you and represent you or your loved one in an organ donation malpractice case, if appropriate.
Visit our website or telephone us on our toll-free line in the United States at 800-295-3959 to be connected with medical malpractice attorneys who may assist you with your organ donation claim.
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