Let’s say I get into a freak accident involving high winds and scaffolding. I’m rushed off to Cook County Hospital where they valiantly attempt to resuscitate me for twelve whole minutes. The medical staff then informs my family that I’m brain dead with no hope of recovery but would make ideal grist for the organ donation mill. My family signs the necessary papers and I’m promptly whisked off to be harvested more thoroughly than a South American coca field. Now let’s say the sawboneses start by removing a non-vital organ, a kidney for instance. However, just as they’re about to go for something vital, like the testicles, lo and behold I inconveniently develop a heartbeat and pulse. Long story short I make a full and miraculous recovery. In the meantime, though, my kidney has been freeze-dried, shrink-wrapped, flown to Schenectedy and transplanted, but my other kidney has failed and I need my original one back in order to live. Let’s say that I’m a rotten selfish bastard, that I had express written instructions against donating anything, that I even painted the back of my driver’s license black, and that my family knew my wishes and ignored them because they hate me for being a rotten selfish bastard. Do I have any legal grounds to sue to get my kidney back?
IANAL.
Sure. Will you win? Who knows.
More importantly, will the kidney even be viable if you do “win custody”? I mean, how many times can you transplant an organ?
Most likely, I think you’d have to settle for:
a) receiving a kidney donation from some third party
b) suing the crap out of the hospital, and maybe your own family, who I’m sure you will be on bad terms with if they violated your explicit orders. (I wouldn’t count on getting your new kidney from one of them.)
Not too likely a scenario. According to http://www.straightdope.com/classics/a2_420.html, you’d probably still have a pulse while you were on the table being harvested. And you 'd probably be hooked up to a ventilator. There’d be no realistic way for the surgeons to realize that you’d made a come back. Not to mention it would probably be the multi-organ harvest that Cecil describes so tactfully. So your miraculous recovery would last a very short time while they pumped you full of preservatives and peeled you like a grape.
Your stipulation that you’d have refused to donate organs makes the scenario even less likely.
That aside, it’s an interesting question. I think they handled it once on ER (or one of the medical shows) when the doctors accidentally transplanted the wrong finger onto a patient.
In the case of a vital organ, though, my guess is that you’d be SOL. I would think the courts would be very reluctant to endanger a third party (the organ recipient) in order to rectify a mistake made by your doctors and relatives. You’d probably be in the same situation as a patient who has had the wrong limb amputated. You’d be in line for a truly massive malpractice award, but what’s gone is gone.
Since proof of brain death is required prior to organ harvest, I somehow doubt that your hypothetical scenerio would ever be a problem. 
artemis
I would guess that, depending on the eventual outcome, you could sue for medical costs, or your estate could sue for wrongful death. But I doubt that you’d ever get the original kidney back. And sorry, but I don’t feel like giving up one of mine.
And for what it is worth, your kidneys are vital organs. You need at least one functioning at some minimal level in order to live without dialysis.
My goof, you’re absolutely right. Please change “a non-vital organ” in the original post to “taking out something survivable”. And for what it’s worth, please change “legal grounds” to “a prayer of being able to successfully sue.”
You know what, just let that whole dumb post be an object lesson in not pulling questions out of a bodily orifice (regardless of whether the orifice in question is vital or not).