NEW YORK — The family of a 19-year-old Bronx construction worker who was pronounced brain-dead after a fall has filed a $180 million suit against the New York Organ Donor Network for allegedly removing the man's heart and other organs without proper consent.

"Melesio Martinez may be a so-called illegal immigrant, but that doesn't mean they can take his organs without consent," said attorney Victor Serby, who filed the suit on behalf of the administrators of the deceased teen's estate.

Melesio Martinez, a Mexico native who lived in the Bronx and worked in construction with his brother, was rushed to the emergency room at New York's Bellevue Hospital on April 16, 2005, after falling two stories at a Brooklyn construction site, according to the suit.

Martinez was pronounced brain dead by Bellevue physicians shortly after his arrival.

What transpired over the next three days — while Martinez was kept on life support so his healthy organs could potentially prolong others' lives — is a point of contention between the New York Organ Donor Network (NYODN) and Martinez's family.

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At or near the time of a patient's death, the hospital is required to provide the NYODN confidential information to determine if the patient is a potential donor.

Despite his lack of brain activity, Martinez had a healthy teenage body, presumably making him a prized donor.

Martinez's brother, Margarito, was approached first about donating his brother's organs. He refused. The act was against the family's cultural beliefs, according to Serby.

But there is a hierarchy to consent.

The guidelines of the Uniform Anatomical Gift Act dictate that a spouse, adult child, or parent's consent supersedes a sibling's.

Because Melesio Martinez had no spouse or adult children, a call was placed to his mother, Enedina Cano Rodriguez, who lives in the small Mexican town of Cuatzoquitengo, population 8,411, where she speaks a Spanish dialect known as Mixteco.

Based on that call, a consent form was filled out, and NYODN moved forward with the removal of Martinez's organs.

On April 19, the teen was wheeled to an operating room, and his heart, liver, pancreas, kidneys, intestines and other tissues were removed from his body and delivered to the NYODN, according to the complaint.

"The date and time of Melesio Martinez's death, as recorded on his death certificate, came after his organs and body parts were removed by NYODN," the suit says.

According to attorney Serby, the mother says she never gave consent, and only understood it to be a tragic phone call announcing the death of her teenage son. Serby says the call should have been recorded, but he has received no evidence that it was.

Serby says the consent form lists a mysterious "uncle" as the translator of the phone call, a man whom Margarito Martinez claims has no relation to the family.

"He was a co-worker at the construction site who came from the same town in Mexico, and I don't know if he told them he was an uncle or they just assumed he was an uncle," Serby told Courttv.com. "But in the actual consent form, which, by the way, is unsigned, they list him as the uncle, and that he allegedly made the telephone call."

Two names scribbled on the consent form, according to Serby, are listed as witnesses to the call.

"I don't know what they were listening to because the conversation would have been in [Mixteco]," Serby said.

A spokesman from the NYODN declined to comment on pending litigation.

Serby concedes that there is a dire need for organ donors and that the issue is an important public-policy concern.

"But, on the other hand," he said, "it has to be done lawfully through valid consent."

Organ transfer

Serby is also involved in a separate suit against the NYODN. The case involves a widow who gifted her husband's kidneys in 2002 to his best friend in Florida, a man named Robert Colavito.

Shortly before the scheduled surgery, Colavito was notified that the kidney on hand was too damaged for transplantation — and the second kidney had already been implanted in another patient.

Colavito sued for fraud, conversion and a violation of specific articles of New York Public Health Law related to organ donation and the duties of the organizations involved. Serby contends that Colavito had property rights in the second organ.

The NYODN claims the second kidney also would have been useless to Colavito.

The suit is currently on appeal before the U.S. Court of Appeals for the Second Circuit.

Meanwhile, Colavito's situation has deteriorated.

"His physicians say it is unlikely he could survive a kidney transplant even if he wanted to do it," Serby said. "He's not in good shape."