Medical examiners don’t have to return to families all organs from autopsied bodies or even tell them parts are missing, in the state’s highest court ruled Wednesday.
“This is an affront to moral and religious values,” Attorney Marvin Ben-Aron told Hamodia. “In truth the bigger issue than losing is that they [the plaintiffs] really wanted procedures to change in a way that would make the city have more consideration for the next of kin.”
The case involves a New York City couple, Andre and Korisha Shipley, whose 17-year-old son was killed in a 2005 car crash. Two months after his burial, the family discovered that the morgue had kept a vital organ. The Shipleys got it back and buried it together with the body.
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.
“I think that the court is naïve in thinking that anybody with an objection will have the wherewithal to tell the medical examiner their issues when they are facing the most trying time of their lives,” said Ben-Aron.
He said that the court left wide room for families to object to autopsy on religious grounds, but that once the right was forfeited that the state’s responsibility to surviving family was very limited.
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.”
“For the Orthodox community’s perspective they case would usually be different, since an autopsy is already being performed over a religious objection, said Rabbi A.D. Motzen, Director of State Affairs for Agudath Israel. “As a result a conversation has already been started with the medical examiner, and issues like return of organs will hopefully be dealt with. It is always the best policy, not only for religious Jews, to have good clear communication with the coroner.”
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.
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.