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Judge’s ruling puts 2nd child in line for adult lungs

Posted at 7:56 PM, Jun 06, 2013
and last updated 2013-06-06 19:56:38-04

By Catherine E. Shoichet and Steve Almasy, CNN

(CNN) -- A judge's ruling Thursday makes another child waiting for a lung transplant in Philadelphia more quickly eligible for adult lungs.

The family of Javier Acosta, 11, asked a federal judge to issue a restraining order to block a policy that keeps children younger than 12 from being prioritized for available adult lung transplants.

Judge Michael Baylson granted a temporary injunction and ordered U.S. Health and Human Services Secretary Kathleen Sebelius to direct the Organ Procurement and Transplantation Network to waive the rule in Javier's case. A hearing on the matter is scheduled for June 14.

The ruling comes a day the same judge granted an injunction for 10-year-old Sarah Murnaghan, whose parents' push for an organ transplant policy change has thrust the issue of who gets donated organs into the national spotlight.

Her family has argued that because the number of children's lungs available through organ donation programs is so small, Sarah -- and other pediatric patients like her -- should be added to the list of people waiting for adult lungs, prioritized by severity of their illnesses.

In a suit filed on behalf of Acosta's mother on Thursday, attorney Stephen Harvey said the argument in Javier's case was equally compelling.

The 11-year-old is "severely ill" and in intensive care at the Children's Hospital of Philadelphia, the lawsuit says.

"Javier needs a lung transplant to survive. Without one he will most likely die before his 12th birthday in August," Harvey wrote. "He could die sooner, much sooner, if his conditions were to suddenly deteriorate."

According to the United Network for Organ Sharing, or UNOS, five children received lung transplants in the first three months of the year and 72 were on the waiting list.

Murnaghan's father, Fran, told CNN's "Anderson Cooper 360˚" on Wednesday that his daughter, who has cystic fibrosis, has declined slightly in the past two days.

"But we're very excited with the news today, that she will have the opportunity to be equally judged and have the opportunity to receive lungs," he said.

The Philadelphia girl has been waiting 18 months for another pair of lungs as her ability to breathe has rapidly deteriorated. Adult lungs are far more available than lungs from children, and doctors have said they believe modified adult lungs might save the girl's life.

Earlier this week, the Murnaghans asked Sebelius to change the rules. She has previously told the family that she doesn't have the authority to intervene in a particular case, but she also called for the policy review. Any change could take up to two years.

In a letter to Sibelius Thursday, UNOS said the executive committee of its Organ Procurement and Transplantation Network will be reviewing the policy Monday and would be able approve an interim policy change if officials decide it's warranted.

CNN's Ross Levitt, Saundra Young, Chris Welch and Jason Carroll contributed to this report.