Montfort, Healy, McGuire & Salley LLP



September 2015 E-Newsletter

New York Court of Appeals Holds that the Right of Sepulcher Does Not Extend to Tissues and Organs

Shipley v. City of New York (2015 NY Slip Op 04791)

A recent decision from the New York Court of Appeals held that a Medical Examiner does not have a legal obligation to notify a decedent’s next of kin that any organs or tissues were retained for further medical examination as part of an authorized autopsy. Although the right of sepulcher provides that the next of kin have the right to immediately possess the body of their deceased loved one for burial, the recent holding did not extend that right to include tissues and organs.

The facts surrounding the decision concerned a 17-year old boy who was tragically killed in a drunk driving accident on Staten Island. His body was brought to the Medical Examiner’s Office for an autopsy, which is standard protocol in New York State for victims of accidents or those who die under suspicious circumstances. Although the Medical Examiner obtained consent from the decedent’s father to perform the autopsy, the court held that the request was ministerial in nature and was not legally required. During the autopsy, the decedent’s brain was removed for future study by a neuropathologist once five other specimens had been collected by the office. It was not returned to the body. Following the autopsy, the body was brought to a funeral home for religious services, but the family was not notified that the brain had been retained.

A few months following the autopsy, a forensic science class from the decedent’s high school visited the Medical Examiner’s office and saw what they correctly believed to be their schoolmate’s brain in a jar which was labeled: “as a result of drunk driving.” The students were horrified, and the teacher immediately cancelled the trip.

After word of what the students had seen reached the decedent’s sister, she informed her parents, who commenced an action alleging intentional infliction of emotional distress and the mishandling and withholding of their son’s brain.

A jury award to the family of $1 million in damages was reduced to $600,000 by the intermediate appellate court.

After an in-depth analysis of case law and Public Health Law statutes, New York’s highest appellate court, the New York State Court of Appeals, reversed and dismissed the complaint. It determined that, because there was no statute compelling a medical examiner to return tissue samples and organs to the family of the deceased, the decision whether to do so was within the discretion of the examiner and, therefore, no liability could be imposed.

To read the full case, click here.

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