Jersey. See Exhibit D (August 26, 1987 letter from Commissioner Coye to Network approving Network's certificate of need application on the condition that Network file a further certificate of need "to become the Statewide Organ Procurement Agency for New Jersey. . . ."); Exhibit H (January 27, 1988 letter from Commissioner Coye to Network approving Network's certificate of need application "for the establishment of an independently organized statewide organ retrieval agency," stating as one reason for such approval that "applicant's proposal is consistent with the September 1987 report of the . . . Task Force . . . which recommended the establishment of a single independently organized retrieval agency for the State."); Exhibit I (Organ Donor Option Certificate and Instructions, which were circulated to hospitals by New Jersey Department of Health and which instruct hospitals to contact Network for further information); Exhibit J (Network's application for certificate of need to become the independently organized organ retrieval agency for the state, in which Network states its purpose "of becoming the state's single, independently organized organ retrieval agency."). Furthermore, despite its protestations to the contrary, the State has offered no explanation for why it has designated Network the sole organ procurement agency for New Jersey, if not to preclude other organizations from procuring organs within the State.
Consequently, at least on the record thus far presented, plaintiffs have demonstrated a reasonable probability of success on the merits on their Commerce Clause claim alone.
(B) Irreparable Harm
Plaintiffs contend that implementation by the Commissioner of her decision to designate Network the sole organ procurement organization for New Jersey will irreparably disrupt DVTP's longstanding relationships with South Jersey hospitals which have been instrumental in DVTP's organ procurement efforts. Furthermore, of particular concern to this court is the threatened depletion of the number of donor organs available to the individual plaintiffs which is posed by the Commissioner's actions. It is true that plaintiffs have yet to establish a direct causative link between the Commissioner's January 27, 1988 approval of Network's certificate of need and a decline in the number of donor organs available to plaintiffs. However, the inevitable result of the State's efforts to concentrate all organ retrieval activity within Network's operation is that the individual plaintiffs, who are not on Network's priority lists of patients awaiting transplants, will lose the potential benefit now provided by donor organs procured in South Jersey.
Intervenor-defendant Network argues that plaintiffs Fletcher and Battle, who are awaiting kidney transplants in Philadelphia hospitals, will not be irreparably injured in the event the Commissioner's designation of Network prolongs the period during which plaintiffs must remain on dialysis in lieu of a kidney transplant, since their survival is not imminently imperiled by continued dialysis treatment. The court is dismayed by the callousness of this argument, especially in light of its source -- an organization which has been designated by the Commissioner as the sole organ procurement agency for New Jersey. Plaintiffs need not establish that defendant's actions place their lives in immediate jeopardy in order to invoke the equity jurisdiction of this court. It is enough that the challenged conduct will diminish the number of donor organs available to plaintiffs.
(C) Balancing of Hardships
Having failed to articulate a legitimate purpose that will be furthered by implementation of the Commissioner's decision which is other than the consolidation of all in-state organ procurement efforts within a single agency, defendant has also failed to establish a congnizable hardship that will be visited on the State by the granting of the requested restraining order. As defendant acknowledges, DVTP has conducted organ procurement activities in the South Jersey area for the past thirteen years -- activities with which, the State professes, it does not wish to interfere.
In light of these circumstances, maintaining the status quo until such time as the court can reach a conclusion on the validity of the Commissioner's designation of Network will impose, at most, a minor burden on the State.
(D) The Public Interest
The court is concerned that the Commissioner's recent actions have created confusion among Delaware Valley Hospitals as to which organization to contact in making organ donor referrals. As stated at the February 1 hearing, several hospitals that have historically dealt with DVTP have been made aware of Network's designation as the sole state-certified procurement agency, and are unsure of what the implications or consequences will be of continuing their relationships with DVTP. Such an atmosphere of uncertainty does not benefit organ retrieval and transplant efforts, which obviously require swift judgments and prompt actions.
It is clear that the public's interest is best served by an efficient and cost-effective organ donation plan. In their submissions and at the February 1 hearing, plaintiffs offered evidence to establish that DVTP is a well-managed organization with one of the most cost-effective organ procurement programs in the country. Network, an organization which is less that six months old, has made no such showing. Certainly, allowing DVTP to continue its present operation unimpaired until the merits of this dispute are reached will not prejudice the residents of the Delaware Valley.
An appropriate order will be entered.
This matter having come before the court on plaintiffs' application for a temporary restraining order; and
The court having held a hearing on the application on February 1, 1988; and
The court having reviewed the submissions and oral arguments of the parties; and
For the reasons stated in the court's opinion filed this date,
IT IS on this 3rd day of February, 1988, hereby
ORDERED that plaintiffs' application for a temporary restraining order is GRANTED, and that defendant Coye, her employees, agents and subordinates are enjoined from implementing her decision to designate the New Jersey Organ and Tissue Sharing Network, Inc., as the sole organ procurement organization for the State of New Jersey, pending final hearing and determination of this cause, or until such other time as the court may so direct.