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The Medical Examiner Who Conducted an Autopsy of Plaintiffs’ 17-Year-Old Son Upon the Son’s Death in an Auto Accident Was Not Under a Statutory or Ministerial Duty to Return the Brain or to Inform Plaintiffs He Had Removed The Brain for Further Examination and Testing

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a two-judge dissent, determined the medical examiner, who conducted an autopsy of plaintiffs’ 17-year-old son after his death in a car accident, was under no statutory or ministerial duty to inform plaintiffs he had removed plaintiffs’ son’s brain for further examination and testing, nor was he under a duty to return the brain. Plaintiffs therefore did not have a “negligent infliction of emotional distress” or “violation of right of sepulcher” cause of action against the city. (Plaintiffs had been awarded significant damages at trial:)

When the Legislature enacted statutes granting medical examiners (and others) the authority to conduct autopsies and dissections (see Public Health Law §§ 4209; 4210), it acknowledged through the enactment of section 4215 (1) that there would be situations where the decedent’s body may not be buried or incinerated within a reasonable time after the decedent’s death, as per section 4200 (1)’s directive. Thus, section 4215 strikes a balance permitting the lawful dissection of a body, while concomitantly ensuring that once the lawful purposes have been accomplished the body will be buried, incinerated or properly disposed of as per section 4200 (1), and that the penalties for the interference or injuries to the body would “apply equally to the remains of the body after dissection . . .”

When section 4200 (1) and section 4215 (1) are read in tandem, there is no language that would cause a medical examiner to divine from section 4215 (1) that he or she is required to return not only decedent’s body, but the organs and tissue samples that the medical examiner is legally permitted to remove. Similarly, our right of sepulcher jurisprudence does not mandate that a medical examiner return decedent’s organs and tissue samples. Thus, because there was no governing rule or statutory command requiring a medical examiner to turn over organs and tissue samples, it could not be said that he or she has a ministerial duty to do so. At most, a medical examiner’s determination to return only the body without notice that organs and tissue samples are being retained is discretionary, and, therefore, no tort liability can be imposed for either the violation of the common-law right of sepulcher or Public Health Law § 4215 (1). Once a medical examiner returns a decedent’s body sans the organs and tissue samples, the medical examiner for all intents and purposes has complied with the ministerial duty under section 4215 (1). Absent a duty to turn over organs and tissue samples, it cannot be said that the medical examiner has a legal duty to inform the next of kin that organs and tissue samples have been retained. * * *

There is simply no legal directive that requires a medical examiner to return organs or tissue samples derived from a lawful autopsy and retained by the medical examiner after such an autopsy. The medical examiner’s obligations under both the common-law right of sepulcher and Public Health § 4215 (1) are fulfilled upon returning the deceased’s body to the next of kin after a lawful autopsy has been conducted. If the Legislature believes that next of kin are entitled to notification that organs, tissues and other specimens have been removed from the body, and that they are also entitled their return prior to burial of the body or other disposition, it should enact legislation delineating the medical examiner’s obligations in that regard, as it is the Legislature that is in the best position to examine the issue and craft legislation that will consider the rights of families and next of kin while concomitantly taking into account the medical examiner’s statutory obligations to conduct autopsies. Shipley v City of New York, 2015 NY Slip Op 04791, CtApp 6-10-15

 

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