New York’s highest court has ruled that medical examiners don’t have to return to families all organs from autopsied bodies or even tell them parts are missing.
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, reduced to $600,000 by a midlevel court.
The Court of Appeals said on Wednesday that medical examiners have discretion to tell families organs have been kept and have no liability for not doing it.
With the family’s permission, an autopsy was performed the following day of the car crash – and it was ruled that Jesse died of multiple blunt impact head injuries.
Funeral directors collected Jesse’s body later that day and a burial and funeral service was held three days later. But, unbeknown to the Shipleys, medical examiners had retained the dead boy’s brain for further study.
Two months later, several of Jesse’s classmates from Port Richmond High School were on a forensic science club field trip at the Staten Island mortuary, where they saw a brain being kept in a jar of formeldahyde.
In what a judge called ‘a surreal coincidence’, the ‘label on the jar indicated that the brain was that of Jesse Shipley’.
Shipley family lawyer Marvin Bed-Aron said: ‘A couple of the kids noticed it immediately, and the kids who knew him became really distraught.’
Some of the students started taking mobile phone pictures of the brain, which were confiscated by their teacher. The excursion ended almost immediately after the discovery.
Students returned to the school and told Jesse’s younger sister Shannon, then 15, who was also in the car with Jesse at the time of the accident and was forced to witness his painful death.
The school had to call the distraught girl’s parents to come and take her home.
‘It was definitely very traumatic for the parents and for Shannon,’ Mr Ben-Aron said.
Told by a priest that Jesse’s burial was not proper unless he was buried ‘whole’, the family demanded that the brain be returned to them.
Jesse’s body was disinterred and the Shipley’s had to endure another agonising funeral service.
Justice William F. Mastro in 2010 said the medical examiner’s office should have advised the Shipleys that Jesse’s brain was being retained for further study.
He wrote: ‘While the medical examiner has the statutory authority to … perform an autopsy … and to remove and retain bodily organs for further examination and testing … 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 retention of those remains have been fulfilled.’
Attorney Marvin Ben-Aron, representing the family, said in January at issue is ‘the common-law right of sepulcher,’ or giving next of kin the right to bury the body.
‘I’m talking about every facet of the body,’ he said.
‘In this particular case, we had to sue,’ Ben-Aron said later.
Lawyers for the city countered at the Court of Appeals that pathologists have no legal duty in New York to notify families or return organs, though they have done it in the city since that midlevel court ruled four years ago.
Assistant Corporation Counsel Ronald Sternberg said 82 percent of families haven’t wanted body parts back and a large portion wished they’d never been asked. He also noted that it is standard practice across the country to have the organs examined, then treated as medical waste.
‘Many families, if not most families, do not want this information,’ Sternberg told the court in January.
New York autopsies are mostly authorized by law in certain circumstances including accidental deaths.
Jesse Shipley was a backseat passenger in the fatal crash.
Authorities say some organs can be immediately examined, but others, including the brain, have to be removed and placed in a preservative.
It becomes firmer and easier to examine after a few weeks.
If families request organs’ return, they are sent to the funeral home handling burial arrangements, Sternberg said. The city medical examiner’s office performs about 5,000 autopsies a year.
It also will hold onto a body at the family’s request until all the organs are available, he said, adding that the various recent measures are burdensome.
Chief Judge Jonathan Lippman questioned why there wasn’t prior simple notification to families. ‘This is an ancient right,’ he said.
Judge Jenny Rivera noted there are religious belief systems behind the burial process and the end of life.
Judge Eugene Pigott Jr. noted the absence of expert medical testimony countering the doctor who performed Shipley’s autopsy, who said he followed standard protocols.