New York medical examiner case

New York's 2nd. Judicial Department Appellate Court ruled last week that the New York City Medical Examiner's Office's failure to inform a decedent's parents that that office had removed and retained their late son's brain violated the parents' right of sepulcher.

Law.com last Friday reported Justice William F. Mastro's writing for a unanimous panel that "[W]hile the medical examiner has the statutory authority…to remove and retain bodily organs for further examination and testing in connection therewith, he or she also has the mandated obligation…to turn over the decedent's remains to the next of kin for preservation and proper burial once the legitimate purposes for the retention of those remains have been fulfilled," [ See Shipley v. City of New York, 2009-03226 ].

The New York court specifically distinguished between this case and Ohio's recent Albrecht v. Treon case, explaining that they "acknowledged that a majority of the Supreme Court of Ohio reached a contrary conclusion under similar facts upon its application of the distinct statutory and decisional law of that jurisdiction. Mindful of that decision, we decline to follow it, since it was premised upon a due process analysis of the next of kin’s alleged property interest in a decedent's bodily organs rather than upon the right of sepulcher. Moreover, the Ohio statutory scheme discussed in that case made no provision for the return of such organs to the next of kin and, indeed, was subsequently amended to expressly require that the coroner dispose of such organs as medical waste.

"In the case before us, the plaintiffs, Jesse's next of kin, have alleged that at the time the medical examiner made their son's body available to them for burial, they were not advised that the brain had been removed and retained for further examination. They have alleged further that, believing Jesse's body to be whole, they arranged for the wake, religious funeral services, and interment of their son's remains, only to learn two months later and quite by accident that Jesse's entire brain, the organ in which the very essence of their son had reposed, was still awaiting further examination in the mortuary. The fact that the organ in question was Jesse's brain serves to make these allegations most compelling, since,

'[i]n the end, this case is not about a random piece of human tissue.It is about the decedent’s brain.The brain was the source of the deceased’s every thought, aspiration, dream, fear, laugh, memory, or emotion; it was the origin of every word spoken, every song sung, every joke told; everything a family member loved about the deceased could be traced back to it. If the next of kin have any right to the decedent’s body, the right must include the brain” (Albrecht v Treon, 118 Ohio St 3d at 365, 889 NE2d at 134[dissenting opinion]).'"

The Albrecht case referred to above was a certified question from the Ohio Southern District Court, holding that "the next of kin of a decedent upon whom an autopsy has been performed do not have a protected right under Ohio law in the decedent’s tissues, organs, blood, or other body parts that have been removed and retained by the coroner for forensic examination and testing." The Southern District held similarly, upheld by the 6th. Circuit Court of Appeals.