Second Child Files Suit for Lung Transplant, Gets on List

A woman whose son died of cystic fibrosis in 2009 successfully sued on Thursday to get his younger brother, now 11, on the adult waiting list for a lung transplant.

It's the second lawsuit of its kind filed in the past two days on behalf of a child waiting for a set of lungs, and the lawyer representing both families says to expect more. The suits have forced an emergency meeting of the board overseeing organ transplants.

Court documents show that the mother of Javier Acosta filed suit on Thursday, after a judge forced Health and Human Services Secretary Kathleen Sebelius to order the Organ Procurement and Transplantation Network, or OPTN, to make an exception for 10-year-old Sarah Murnaghan of Pennsylvania this week.

"Javier is severely ill and if he does not receive a donated set of lungs very soon he will die," the document filed by his mother, Milagros Martinez, reads. "Without one he will most likely die before his 12th birthday in August." Like Sarah, Javier has cystic fibrosis -- an inherited genetic disease that can wreck a patient's lungs.

The suit isn't surprising, says bioethicist Arthur Caplan, who had predicted a flood of lawsuits as desperate parents see a way to help their dying children. "This is absolutely what I feared, that we would get a flood of families saying 'I want to get my child fixed up'," says Caplan, director of the division of medical ethics at NYU Langone Medical Center and a frequent NBC News contributor.

"It's 100 percent understandable. It's also the reason that we try to have a system rather than a competition about who can have the most publicity or what a judge might think is the best use of organs."

On Wednesday, U.S. District Court Judge Michael Baylson issued a temporary restraining order directing Sebelius to suspend existing organ allocation rules after a frantic campaign by her mother scored headlines and widespread national sympathy. The lawsuits are a result of the complicated, two-tier rules that OPTN uses to try to allocate scarce organs in the fairest and most effective way. 

Adult organs go to patients in greatest need, divided by region to ensure that people who need organs get them quickly.

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