We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. In this article, the author addresses “Avoiding liability involving autopsies.” This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

I. Forensic autopsies

State and municipal law mandate autopsies in cases of “unnatural” deaths. These include the death of any person not under a doctor’s care and will always include cases that appear to be homicide, suicide or accident.

Because the state has a compelling interest in such cases, no permission from the next of kin is required. A physician who performs such an autopsy under that legal sanction and does so with ordinary care and skill is not liable to the deceased’s family for “mutilation” of the body without their consent.

In some states there is a quasi-property right to the remains such that the next of kin must, under due process, be given notice that an autopsy will be performed. If they object – most likely on religious grounds – they must then seek a Court Order to prevent the autopsy.

However, despite the fact that the governing statute may, as in New York, require a “compelling public necessity,” if an autopsy is to be performed over a religious objection, “compelling public necessity” tends to be interpreted widely to empower coroners and district attorneys. The family rarely prevails.

If you are involved in such a case as the treating physician you have no liability issues to concern you as long as the proper authorities are informed of the death.

If you are the pathologist who performs the autopsy you have no liability issues as to the autopsy itself as long as you do not start while an objection is pending before a court and then eventually perform any approved autopsy according to the standard of care. You should, however, bear in mind that (as will be discussed below) the family keeps its rights as to the final disposition of the remains and tissue retention or destruction without their consent can be actionable.

II. Medical autopsies

All autopsies performed on decedents who were under medical care at the time of their deaths  and which are directed towards understanding the cause of death do require permission from an authorized person. In these cases that you have to consider proper legal steps.

A lawsuit or board complaint over an improperly obtained autopsy would not be a malpractice case. There is no residual duty of care to the deceased patient and there is no physician-patient relationship with the family, whose damages will be the emotional distress that they suffered due to improprieties in the autopsy process. Your professional liability carrier will therefore not be obligated to defend you or to cover any damages assessed against you.

1. The obtaining physician’s potential liability

The potential liability for the physician who is obtaining the autopsy relates to consent.

The crucial issues in all autopsy consent laws are:

  • Who has the authority to consent to the autopsy
  • Who can perform the autopsy
  • Limitations on the scope of the autopsy
  • How examined tissues will be dealt with after the autopsy

Let’s look at these individually

(i)  Authority to consent to the autopsy

At common law, the rule is that “a corpse has no value.” However, an 1896 New York caseconcluded that the body of the deceased is held as a “sacred trust” by the next of kin. The next of kin had the right to protect the body from an unauthorized autopsy. Liability would therefore attach to anyone who transgressed this protective right.

The right to refuse an autopsy is not based on property rights attached to the dead body. The next of kin instead have the right to prevent disfigurement of the body and delay of its burial.

If the deceased person did not leave a binding statement, as in their will, that forbids autopsy, the matter remains open. Consent to the autopsy must therefore be given by their legal next of kin.

This is usually done in person because the next of kin will be there or nearby when death occurs.  However, in many states if in-person written permission cannot be obtained in a timely manner, consent can be given by phone or by fax if appropriately witnessed.

What is essential is that the statute be followed.  In a New York case a suit against a hospital was upheld because a verbal consent to autopsy was held invalid as the state statute required that consent be in writing.

The more significant issue for you as the physician obtaining the consent is who exactly is the “next of kin.” Who is  legally entitled to sign for the autopsy.

Based on the “sacred trust” common law principle, this has historically been the person responsible for disposing of the deceased person’s remains and so the hierarchy is usually as follows:

1. Spouse of an adult or parents of a minor

2. Adult children

3. Parents of an adult

4. Adult siblings

5. Legal guardian

6. Individual who is authorized or obliged to dispose of the remains of a decedent with no next of kin

An advanced directive may need to be taken into consideration as well.

In some states the status as a proxy decision maker for the patient terminates at the moment of the patient’s death and in some states, like New York, it remains as to the authorization for organ donation only, and so the decision-making process for the autopsy defaults back to the next of kin.  Some states, however, allow a named healthcare surrogate to authorize an autopsy and may even, as in Florida, prioritize that individual over the next of kin.

Your goal in any complex situation is to avoid siding with one individual over another or trying to influence the process such that consent ceases to be voluntary, placing you at risk of being sued for the emotional distress suffered by the family that opposed the autopsy.

In any situation in which you are simply not certain who has the authority to consent to the autopsy or in which there is more than one legally appropriate decision-maker, you should step away from the process and refer it to Risk Management or to the hospital’s legal department.

(ii) Authority to perform the autopsy

In most cases, medical autopsies are performed in the hospital by a pathologist on that hospital’s staff. Under these circumstances, the autopsy is performed without charge.

However, you are obligated to tell the family that they have the option to arrange for a private autopsy at their own expense.

If your state offers families the option to have a physician of their choice present as an observer during the performance of the autopsy then you must inform them of that as well.

(iii) Limitations

You should, of course, reassure the family that a standard autopsy will not preclude the body from being able to be viewed at a wake or funeral.

However, you must also be aware that the next of kin giving the consent can restrict the autopsy procedure. For example, if the death is likely due to a stroke secondary to a paradoxical embolus they may request that only the brain and the cardiopulmonary system be examined.

To ensure that the consent is valid you should specifically ask if they have any such restrictions rather than just assuming that their silence gives consent.

If you are the pathologist performing the autopsy make sure to be respectful of any specified limitations. In particular, do not try to game the situation, for example, by doing a very long incision so that you can have a look at the thoracic cavity in what should have been an autopsy limited to the abdomen. There was a case of a successful lawsuit for the mental suffering of the next of kin when a limited autopsy was performed through an incision that was longer than was agreed upon at the time of consent.

(iv) Tissue disposition

Tissues and organs may be returned to the body, retained for teaching or research purposes, or disposed of. In the absence of any specialized instructions the choice is up to the pathologist.

However, the next of kin may request or refuse any of these options. Again, even if your state does not mandate they be informed of this you should nevertheless do so both ethically and to ensure that the consent will stand scrutiny if later challenged.

Some groups, such as Jews or Native Americans, have strong beliefs on intact burial. It is essential to make sure to deal with the matter affirmatively in the consent, but this matter should not be limited to only certain groups because the idea that someone they loved has been buried without their brain or heart can be deeply disturbing to most families.

This really returns us to the informed consent issue and the fact that the lay public does not independently understand how autopsies are done.  A tactful short statement that “It may be necessary to retain some material to study it properly but that will be done very respectfully and the tissue will then be cremated unless you want to make other arrangements” will generally be enough. The consent form should then address the retention issue specifically.

Failure to mention the matter at all, or for the pathologist to dispose of the remains that are not needed for diagnosis or evidence without consent to do so, can result in legal action.

For example, in an Ohio case the medical examiner, following the standard of practice, fixed the brain for two weeks before sectioning and examining it. The other organs were returned to the body and the body was released for burial. The brain tissue was cremated after it was examined later that month. The deceased’s next of kin brought suit claiming violation of their due process rights to be notified that the brain was retained and to control the complete final disposition of the body. The court held that they were entitled to notice and the opportunity to reclaim the organs before disposal.

The obligation to consider how to deal with remains that are not required to be kept as evidence also applies in the case of a forensic autopsy even though consent for the autopsy itself is not required.

For example, the family of a murdered Jewish soldier successfully sued the government for having retained and cremated several of his organs, with the court holding that the government had the right to perform the autopsy without the family’s consent but also had a moral and legal requirement to return all organs before burial in keeping with the family’s faith.

Consent for organ donation or for the use of tissue for research purposes must be obtained separately from the consent for an autopsy.

2. The pathologist’s potential liability

Once consent for the autopsy has been properly obtained, the potential for liability shifts to the pathologist.

As discussed above, the pathologist must keep to any specified restrictions. If that results in an incomplete diagnostic conclusion then such should be specified in the report.  The matter can then be taken up again with the family. However, the pathologist should not extend the procedure on their own initiative.

How the body is dealt with after the autopsy is completed is also a potential source of liability.

The general law, as delineated in a Kentucky case in which a pathologist was not held liable for placing the brain in the abdominal cavity when the autopsy was completed, is that if the autopsy is performed by standard methods there is no civil claim for mutilation of the body.

However, the fact remains that that pathologist was first sued and eventually had to appeal the case, which is not the position that you want to be in.

You therefore want to err on the side of restraint in how you treat the remains rather than have a funeral director tell the horrified family that Uncle Ed had been re-arranged such that they head straight for an attorney as soon as the funeral is over.

The pathologist should also ensure that any retained specimens are addressed in accordance with the family’s instructions if no retention is needed for diagnostic purposes or as evidence in a criminal case.

Finally, because the report from a medical autopsy is handled as a medical record pathologists should comply with all state privacy laws and with HIPAA.

In summary: To avoid liability to the surviving family, it is essential to make sure that the appropriate individual provides consent for the autopsy, that that consent  covers  options available to the family and that the family’s instructions are followed as closely as medical constraints will permit, including as to eventual disposition of the remains.

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