No Kidney for Doctor

In a ruling that reasserts some logic to a case that seemed to have strayed into the realm of the ridiculous, Suffolk County Special Referee Jeffrey Grob rejected doctor Dr. Richard J. Batista's request that his estranged wife, Dawnell C. Batista, either return the kidney (or $1.5 million for the kidney) he donated to her while they were still married. The doctor was trying to include the value of the kidney as part of the marital assets to be considered in the divorce proceedings.

"At its core, the defendant's claim inappropriately equates human organs with commodities," Suffolk County Special Referee Jeffrey Grob declared in a 10-page ruling. "While the term 'marital property' is elastic and expansive ... its reach, in this court's view, does not stretch into the ethers and embrace ... human tissues or organs," Grob wrote.

The Special Referee also cautioned that Dr. Batista could leave himself open to criminal prosecution for attempting to put monetary value on a human organ. Citing Public Health Law §4307, which makes it a crime for "any person to knowingly acquire ... for valuable consideration any human organ for use in human transplantation."

The four-year-old divorce case between vascular surgeon Richard J. Batista Jr. and his wife, Dawnell C. Batista, gained worldwide notoriety in January when Dr. Batista and his attorney, Garden City, N.Y.'s Dominick Barbara, held a press conference announcing their intentions to seek compensation for the organ. Barbara petitioned the court for a stay to produce an expert who could testify as to the value of the organ. Click here for more details on this case.

However in the ruling Referee Jeffrey Grob wrote in Batista v. Batista, Jr., 201931/05 that the doctor's sacrifice could be taken into account:

"That the defendant may not proffer the economic proof he seeks to adduce, however, does not suggest that the sacrifices, magnanimity and devotion, which arguably and logically attend, are beyond the pale or lack relevancy."

Dr. Richard Batista's lawyer, Dominick Barbara, called the ruling a "complete victory" for his client, as such proof would be taken into account in deciding the remaining issues at trial, he said.

The decision was "not a surprise to any right-thinking person," said Douglas R. Rothkopf, Dawnell Batista's attorney, in an interview, lauding the ruling as "an excellent one." Rothkopf declined to comment further, only saying that the "facts will speak for themselves" at the upcoming divorce trial, also in front of Jeffrey Grob. The issues will be limited to division of the marital assets, maintenance and child support.

I Want My Kidney Back

Going through a divorce can be a very traumatic experience. There are a myriad of things to fight over: property, money, the kids, visitation, custody etc. Well, the Batista's are going through one of those messy divorces, but with a unique twist. Dr. Richard Batista, from Ronkonkoma, NY, is demanding that Mrs. Dawnell Batista return the kidney he gave to her - or pay him $1.5 million. He is claiming that his wife was having an affair.

"I saved her life and then, to be betrayed like this, is unfathomable. It's incomprehensible," said Dr. Richard Batista, 49. "I feel humbled and betrayed and disregarded. This divorce is killing me."

“In theory, we are asking for the return of the kidney,” said Dominic Barbara, Dr. Batista’s lawyer. “Of course, he wouldn’t really ask for that, but the value of it.”

Dr. Richard Batista, 49, a vascular surgeon at Nassau University Medical Center, married his wife Dawnell, on Aug. 31, 1990. According to the doctor, the marriage went well for the first two years and then began a "slow downward trend." In June 2001 Dawnell needed a third kidney transplant. As a baby, her father had donated her first kidney and years later a brother donated the second one. It was discovered that Dr. Batista's kidneys were a 1-in-700,000 match and he gladly donated one of them to his wife, allowing her to skip a waiting list of 6,748 people awaiting kidneys in New York State.

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"My first priority was to save her life," Batista said at a news conference in Garden City. "The second bonus was to turn the marriage around. When I donated ... the next day I was on my feet going down the hallway to visit her in the adjoining room - there was no greater feeling on this planet. I did the right thing for her to this day. I could still do it again.”

Initially, Batista said he was happy with his gift of life: "I was walking on a cloud. I did the right thing for her and to this day I would do it again." The transplant certainly gave Mrs Batista a new lease of life. She went back to college to earn a master's degree in nursing and took up karate, but Mr Batista claimed that she repaid his kindness with infidelity. He said that she had an affair with a physical therapist that she began seeing after she injured herself while working towards her black belt. The therapist, David Cazalet, has vehemently denied the allegation.

"We're friends - we've never had an affair," he insisted, calling Batista a "big monster."

"I feel bad for her because he's a wackadoo," he said.

Dr. Batista claims that he requested the return of his kidney - or its monetary value - because his wife was preventing him from seeing his three daughters, aged 8, 11 and 14 after visitation had been agreed upon. The divorce proceedings had already stretched out for more than three years. His lawyer, Dominic Barbara, said the $1.5 million his client feels he's entitled to reflects damages, including how much money she made as a result of being able to continue working and not having to go on dialysis. "A price can't be placed on a human organ but it does have value," he said.

Dawnell Batista, 44, a nurse from Massapequa, filed for divorce in July 2005.  The divorce papers were served on Dr. Batista while he was in surgery. According to Dawnell, Richard was the one who had ruined their marriage with his obsessive belief that she was fooling around. He even went as far as to examine her underwear for evidence that she had been with another man.

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In a Mineola court, stating that she has never been unfaithful, Douglas Rothkopf, Dawnell's lawyer, accused Richard Batista of harming the couple's three children, ages 14, 11 and 8, by holding what he called a "grotesque" press conference on the issue and catapulting the family's problems into the media spotlight.

But Richard Batista's lawyer, Dominic Barbara of Garden City, said his client has the right to tell his story publicly, and that it is Dawnell Batista who should be ashamed.

"This is a man who put his life on the line, and his wife has treated him like a piece of dirt," he said.

The couple was in court to debate whether a judge should impose a gag order in the case. Court referee A. Jeffrey Grob reserved decision on Rothkopf's request for a later date, allowing the public battle to continue.

Medical ethicists agreed that the case is a nonstarter. Arthur Caplan of the University of Pennsylvania's Center for Bioethics said the likelihood of Batista getting either his kidney or cash was "somewhere between impossible and completely impossible."

Robert Veatch, a medical ethicist at Georgetown University's Kennedy Institute of Ethics, noted that "it's illegal for an organ to be exchanged for anything of value." Organs in the United States may not be bought or sold. Donating an organ is a gift and legally, "when you give something, you can't get it back," he said.

"It's her kidney now and . . . taking the kidney out would mean she would have to go on dialysis or it would kill her," Veatch said.