Lawsuit To Proceed Over Medical Examiner Keeping Brain
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The Appellate Division has ruled that the family of a 17-year old Elm Park resident killed in a January 9, 2005 car crash can continue with their lawsuit against the City of New York for keeping their son's brain, without notifying the family, after the autopsy. The City Medical Examiner performed an autopsy on Jesse Shipley, at the family's request, and determined that the cause of death was the result of multiple blunt impacts to the head. The brain was removed from the body and placed in a jar preserved in a formaldehyde solution for further testing. Unbeknownst to the family, when the Jesse's body was returned for burial, the medical examiner withheld the brain. After a wake and a funeral, the family buried Jesse on January 13, 2005, without his brain.
In early March, more than 2 months after the autopsy report was signed, students from Jesse's school, Port Richmond High School, went on a field trip to the Richmond County Mortuary. During their tour of the Mortuary, some of the students observed a human brain held in a formaldehyde solution. In a surreal coincidence, the students realized that Jesse's name was on the jar. Word quickly spread upon the student's return to school and eventually, Jesse's sister, also a student and was also in the car crash that killed him, found out that Jesse's brain was still in the Mortuary and informed her parents.
A lawsuit seeking recover for damages for emotional injuries that the family suffered as the result of the mishandling of Jesse's remains under the right of sepulcher. Sepulcher is the right of decedent's next of kin to bury the remains of their decedent. The Coroner's failure to return the brain or to inform the family that he was holding the brain pending further testing necessitated a second funeral and burial. The City of New York moved to dismiss, arguing that the medical examiner's actions were immune from liability as they involved a discretionary act.
The Appellate Court held that the although the Medical Examiner has a right to perform an autopsy and to remove and retain body parts for further testing, they also have the obligation to turn over the decedent's remains to his next of kin for proper burial once the further testing has concluded. If the medical examiner had informed Jesse's family that his office was retaining the brain for further testing, the right of sepulcher would have been satisfied as the family could have made a decision as to postpone the burial until the remains could have been buried completely.
The result of this decision is that the lawsuit will continue and be resolved at an eventual trial. Damages differ under this theory as the likelihood of emotional injury is deemed so inherently genuine that neither proof of the plaintiff's accompanying physical harm nor of a specific medical diagnosis is necessary to a successful prosecution of a claim. In an ordinary personal injury action, the plaintiff is required to prove their injury by medical evidence and treatment.
Unfortunately, besides a lack of common sense and courtesy, this terrible situation resulted from the City's budget cuts and Staten Island's continued reduction in services. The pathologist that performed the examinations on the preserved brains wasn't called until there were six brains, which could take months to accumulate. Again, Staten Island doesn't rate the same service as the other boroughs, allowing something as terrible as this to happen.
