Posted Jul 02, 2007 12:33 am CDT
Mark and Diane Albrecht under-stood that an autopsy would have to be done on the body of their son.
Christopher Albrecht, a 30-year-old cable installer, drowned in December 2001 in southern Ohio after suffering a seizure and losing control of his van. The vehicle ran off the road and landed upside down in a retention pond.
Under Ohio law, the bodies of those who die in motor vehicle accidents must undergo an autopsy—the same as those who die violently or suspiciously or unattended, or who simply happen to be younger than age 2.
It wasn’t until five years later, when the Albrechts saw for the first time a copy of the autopsy report, that they realized not all of what had been Christopher had been laid to rest.
His brain had been removed for examination, and at the time he was buried—a few days after the accident—it was still in Cincinnati, immersed in a fixing solution of formaldehyde and salt at the Hamilton County coroner’s office. The solution causes the brain to solidify so that it can be sectioned and analyzed, a routine process that takes 10 days to two weeks.
For the Albrechts, the implications were agonizing. A lawyer for the couple says they were “shocked and horrified” to discover that they had unknowingly buried their son with a vital part of him missing. Even worse, says Cincinnati lawyer John H. Metz, they learned that after the examination those remains had been incinerated with the county’s medical waste.
“The Albrechts, like every other family we’ve dealt with, can’t believe that their loved one’s remains were not treated with more respect, and that the deceased’s body parts were taken and kept by the coroner without any notice to them,” says Metz, who represents the Albrechts and similarly situated Ohio families—potentially thousands of them—in a lawsuit against 87 of 88 Ohio county coroner’s offices.
Filed in federal court in Cincinnati, the suit claims that families have a property right to body parts removed during autopsy of their next of kin.
They charge that Ohio county coroners have been violating that property right by taking and keeping those vital tissues and organs without notice since at least 1991. Albrecht v. Treon, No. 1:06-CV-274 (S.D. Ohio May 8, 2006).
The litigation has drawn considerable attention—and much concern—among coroners and medical examiners nationwide. If the plaintiffs prevail, the case could fundamentally change the way autopsies are conducted in this country, experts on both sides of the issue say.
The suit bares one of the more unsavory aspects of the forensic investigation. It also raises difficult, emotional issues regarding a coroner’s legal authority to conduct autopsies as he or she sees fit, as well as over the family’s desire to bury the body in as complete a state as circumstances will allow.
In almost every state, medical examiners and coroners remove brains, other body parts, tissues and fluids during autopsies for later laboratory examination. And while most inform the next of kin of the autopsy, they don’t often explain to grieving families exactly what an autopsy entails. Nor do they usually contact the family afterward to find out how they’d like to dispose of whatever remains.
Lawyers for the Ohio defendants refused to comment on the case, but New Jersey’s acting state medical examiner, Dr. Victor Weedn, a lawyer and forensic pathologist familiar with the litigation, says the taking and retention of organs, tissues, fluids and other evidentiary specimens is not only standard practice but also generally considered to be the optimal one.
“What the plaintiffs are seeking might sound reasonable but presents all kinds of practical difficulties,” Weedn says.
Tracking down and documenting the next of kin’s wishes before an autopsy can eat up valuable time during a forensic investigation, he says. The value of an autopsy declines as the body deteriorates, even when refrigerated. In many cases, the next of kin is unknown, unavailable or in dispute. Family members often disagree over how to handle the body. And the next of kin in some cases could be the chief suspect in a murder.
“Taken to its logical extreme, a medical examiner or coroner would not be able to draw blood for alcohol testing in a motor vehicle accident without prior approval from the next of kin.”
Even for the families themselves, there are pitfalls, Weedn argues: Holding a body for burial for weeks pending examination of the organs is not practical for a family in mourning; returning the organs for burial weeks later with the rest of the body is potentially cumbersome and cruel. He says coroners and medical examiners have appropriate procedures in place for the disposal of such remains, which nobody suggests is anything less than respectful.
In his experience, Weedn says, most families don’t want to be contacted weeks after a death to discuss, once again, the disposal of a loved one’s remaining remains.
The plaintiffs say they are not contesting a coroner’s right to perform an autopsy when necessary, or even the authority to remove and retain a decedent’s brain or other body parts to determine the cause of death, according to Metz and co-counsel Patrick Perotti of Painesville.
But they argue that coroners should be required to notify the family—and to give them an opportunity to either retrieve the remains or have them disposed of when the coroner is done.
The plaintiffs chalk up resistance to notification to professional arrogance and insensitivity, noting that Hamilton County has been informing families in just this fashion with no difficulty for more than a year.
Hamilton County instituted that policy when it settled a case similar to Albrecht. The prior case was settled when a federal judge in Cincinnati ruled that next of kin do have a constitutionally recognized property interest in deceased relatives’ body parts. Hainey v. Parrott, No. 1:02-CV-733 (S.D. Ohio Sept. 28, 2005).
The settlement called for $5.9 million to be split among more than 900 plaintiffs. It also required the coroner to notify the next of kin when a body part has been retained and to abide by the family’s wishes as to the ultimate disposition of the autopsied remains.
The Hainey decision was based largely on a 1991 ruling by the Cincinnati-based 6th U.S. Circuit Court of Appeals, which held that the widow of a man whose corneas were harvested during an autopsy despite her objections had a “legitimate claim of entitlement” in her dead husband’s body, including his corneas, that was protected by the due process clause of the 14th Amendment. Brotherton v. Cleveland, 923 F.2d 477. That case resulted in a $5.2 million settlement to about 600 class members.
Even forensic scientists are having trouble being unanimous on the issue. In February, the board of directors of the American Academy of Forensic Sciences voted for the first time in its 59-year history to file an amicus brief in the Albrecht case. The board later rescinded its vote, deciding instead to draft a policy statement on the retention and notification issue.
The National Association of Medical Examiners, however, which represents about 800 coroners and medical examiners nationwide, did file an amicus brief on behalf of the defendant counties, saying families can’t be given veto power over the government’s authority to investigate suspicious or unnatural deaths.
“Family members cannot be expected to know or recognize all the issues involved in death investigation and certification,” the brief says.
“Furthermore, even if next of kin were in a position to know all concerns, they have an inherent bias and are in an emotional state which precludes a proper balancing of private and public interests.”
While Ohio appears to be the only state in which the issue is being litigated, objections to the practice have started cropping up elsewhere. Last year, a Grand Rapids, Mich., woman made headlines statewide when an independent pathologist she hired to do a second autopsy on her deceased 91-year-old father found that the man’s brain had not been replaced after the first autopsy by the Kent County coroner.
And earlier this year, San Mateo County, Calif., officials voted to pursue state legislation that would require coroners there to notify next of kin when parts of a deceased relative’s body are retained for further testing or examination after an autopsy. County officials acted after the mother of a 23-year-old man who died last fall inadvertently discovered that the coroner’s office still had possession of his heart more than three months after he was buried.
As of mid-May, the Albrecht case was in limbo. In March, U.S. District Judge Susan J. Dlott granted the defendants’ motion to certify to the Ohio Supreme Court a key question of state law: whether the next of kin of a decedent who has been autopsied has a property right to all of the decedent’s remains.
Deborah Wurzelbacher—formerly Deborah Brotherton, the name plaintiff in the 6th Circuit case—says she would have hoped that the earlier Hamilton County case would have taught coroners a lesson.
“I guess they haven’t learned anything,” she says.