ALBANY, N.Y. — Medical examiners don’t have to return to families all organs from autopsied bodies or even tell them parts are missing, the state’s highest court ruled Wednesday.
The case involves a New York City couple who buried their 17-year-old son after a 2005 car crash, not knowing his brain had been removed. Two months after the funeral, Jesse Shipley’s high school class saw his brain in a labeled jar during a morgue field trip.
The Shipleys got it back and had a second funeral. A jury awarded them $1 million for emotional distress. A midlevel court upheld the city’s liability in 2010 but reduced the award to $600,000.
The Court of Appeals, divided 5-2, reversed that decision Wednesday, dismissing the family’s claim and concluding that state law and burial rights don’t require returning parts that can be legally removed during an autopsy.
“At most, a medical examiner’s determination to return only the body without notice that organs and tissue samples are being retained is discretionary,” Judge Eugene Pigott Jr. wrote for the majority. “Therefore, no tort liability can be imposed for either the violation of the common-law right of sepulcher or public health law.”
In a dissent, Judge Jenny Rivera wrote that the statutory authority to do autopsies doesn’t permit medical examiners to keep organs once they’ve used them for the legitimate purpose of determining how someone died unless they notify and get consent from the next of kin.
“Throughout history, individuals from different cultures and communities have performed funeral rites, based on personal beliefs and religious customs, intended to send the deceased to a final resting place,” Rivera wrote. “This most human of acts has been repeated over the centuries in myriad and unique ways, and within our legal system the common law has recognized the next of kin’s right to possession of the body for preservation and burial.”
Lawyers for the city had argued that pathologists have no legal duty in New York to notify families or return organs, though they had done so since the midlevel court ruled. About 82 percent of families hadn’t wanted body parts back and a large portion wished they'd never been asked, they said, noting it’s standard practice across the country to have the organs examined, then treated as medical waste.
Nicholas Paolucci, spokesman for the city corporation counsel, said Wednesday that they were pleased the court recognized that the medical examiner fulfilled its obligations under the law.
Attorney Marvin Ben-Aron said the Shipleys didn’t receive the court-ordered award and now they never will, and that the ruling is a disservice not only to his clients but to the families of the deceased who are autopsied across the entire state. “I agree with dissent and I hope Legislature take this opportunity and codifies and protects the rights of the next of kin,” he said.
