32 Temp. J. Sci. Tech. & Envtl. L. 1Temple Journal of Science, Technology & Environmental Law

Summer 2013

BEHIND THE CLOSED DOORS OF THE CORONER'S OFFICE--THE MEDICAL/LEGAL SECRETS INVOLVING AN AUTOPSY

Samuel D. Hodge Jr. a1  Nicole M. Saittaaa1

Copyright (c) 2013 Temple Journal of Science, Technology & Environmental

Law; Samuel D. Hodge Jr.; Nicole M. Saitta

Those who have dissected or inspected many [bodies] have at least learned to doubt; while others

who are ignorant of anatomy and do not take the trouble to attend it are in no doubt at all.1--Giovanni

Battista Morgagni

I. Introduction

The medical examination of a body following death is known as an autopsy, post-mortem

examination or obduction.2 Regardless of its name, the purpose of the procedure is to ascertain the

cause and manner of death, to characterize the extent of any disease that may have been present,

or to learn whether a particular medical treatment has been effective.3

The scientific benefits of an autopsy are beyond question, but a physician may not examine or

remove body parts without the consent from the next of kin.4 That permission, however, may not

always be given because a number of individuals regard post-mortem examination with aversion5 or

object because of religious reasons.6 Even medical examiners are restricted in their ability to conduct

autopsies and may only act within the appropriate statutory scheme which is carefully and *2 rigidly

circumscribed.7 This article will discuss the autopsy procedure and will examine some of the legal

issues that arise in a criminal and civil context, from the use of insects to establish the time of death,

to whether an insurance carrier may request a post-mortem examination in connection with the

payment of benefits.

II. Forensic and Medico-Legal Autopsies

The word “autopsy” describes the self-study of a dead body and is performed for clinical as well as

forensic or medico-legal reasons.8 At one time, autopsies were routine and considered the ultimate

medical audit.9 They were performed on about half of those who died in hospitals.10 Currently,

however, it is estimated that autopsies are conducted in only 5 percent of the cases.11 Hospitals are

no longer mandated to perform them, and carriers do not pay for them.12 Some facilities and doctors

even avoid them because of the fear that they may disclose an act of malpractice.13 In any event,

there are two types of post mortem examinations, a clinical autopsy and a forensic autopsy, and

both aim to ascertain the primary cause of death, the immediate cause of death, and the

intermediate cause of death.14

A. Clinical Autopsies

A clinical autopsy, which is also known as a pathological or hospital autopsy, is performed to

ascertain the disease which caused the death when ante-mortem efforts were unsuccessful.15 In

fact, this type of post-mortem examination is conducted even when the cause of death is known yet

there remains a desire to study the disease process “in situ,” thus advancing the medical

understanding of the process.16 For example, this procedure can provide invaluable health

information such as identifying hereditary or contagious diseases for surviving family members.17 A

clinical autopsy is usually performed in a hospital by a pathologist or

attending *3 physician.18Surgeons have been known to perform this type of post mortem examination

when a pathologist is not available; however, that practice has been criticized as not being sound

because many gross findings are overlooked.19

B. Forensic Autopsies

A forensic autopsy is a medical/legal procedure, usually performed as part of a criminal

investigation.20 While forensic autopsies are commonly associated with violent deaths, most cases

involve sudden but natural deaths.21 Depending upon the jurisdiction, forensic autopsies can be

conducted by either a coroner, an elected official who is sometimes but not always medically trained,

or a medical examiner, a physician who often specializes in pathology.22

The purpose of this type of autopsy is to protect the public's interest and to provide the information

necessary to address legal, public health and safety issues.23 The National Association of Medical

Examiners (NAME) has published minimum standards for the selection of cases requiring forensic

autopsies.24 The cases include deaths known or suspected to have been caused by criminal

violence, the unexpected demise of an infant or child, deaths associated with police action, deaths

due to work place injury, and deaths by unwitnessed drowning, among others.25 A forensic autopsy

is also utilized to categorize the cause of death as either natural, accidental, homicide, suicide or

undetermined26 and to determine the time of the person's demise.27

III. The Autopsy Procedure

Autopsies came into vogue in the 18th century,28 and this exploration of the human body grew out of

“the practice of dissection and the study of anatomy.”29 While the methods used today are different,

the fundamental task of an autopsy - close examination of the exterior body and internal organs -

remains the same.30

*4 The autopsy process usually starts when the body arrives at the medical facility with the

deceased's medical records and proper identification.31 A valid and completed consent form is also

needed if the case is not authorized by statute.32 If medical records are not available, the decedent's

personal physician or caregiver may be contacted to obtain the necessary information to help frame

the issues involving the examination.33 A review of the known circumstances of death and an

external examination of the body, including measurement of body length and weight, position of the

clothing, and trace evidence on the clothing, is completed.34 Known circumstances, including

positioning of the decedent when found, the location and temperature of the body, and other relevant

information, is recorded.35 The body is usually photographed, and x-rays may be

performed.36 Samples of hair and nails may be taken, particularly if an unnatural death is suspected,

and all orifices are inspected upon removal of the clothing.37

Next, the examiner assesses the apparent age of the decedent, the sex, racial characteristics, hair,

eyes, body habitus, scars, tattoos, and other surface findings, including obvious injuries, such as a

stab or gunshot wound.38 Postmortem changes, including decomposition, livor mortis and rigor

mortis, are described.39 Livor mortis is a deep purple or red discoloration that appears on the

dependent portions of the body after death.40 The change in color associated with livor mortis is

caused by the settling of blood under the force of gravity.41 Livor mortis will usually appear within one

or two hours following death and is visible to the side on which the body is lying.42 On the other hand,

“rigor mortis is the postmortem stiffening of the body's muscles.”43 Rigor mortis is a biological

process generally beginning in the hours following a person's demise.44 The “onset of rigor mortis is

affected by many conditions,” including weather, but “the degree of stiffness is not” particularly

“helpful in ascertaining the time of death.”45

“The procedure for conducting the autopsy” may vary depending upon “the extent and purpose of

the examination.”46 “Most standard autopsies,” however, *5 “consist of an examination of the chest,

abdominal cavity, and brain.”47 Prior to starting the internal inspection of the body, a wooden block is

placed under the corpse's back, which causes the chest to be thrust forward and the arms and neck

to flail back thereby allowing the thoracic area to be more easily opened.48 The thoracic cavity is then

cut by making a deep U or Y-shaped incision that extends “from the shoulders to mid-chest and

down to the pubic region.”49 Esthetic requirements are considered when making the incision, with

modifications made for females so that the incision is either just above or just below the

breasts.50 The incision avoids the belly button, only cuts through the muscle and fat, and avoids bone

or cartilage.51 After the incision is made but before the organs are removed, the pathologist

examines the internal abdominal cavity, noting the relative positioning of organs, evidence of fluid or

blood collection, and the presence of any rib fractures.52 If a urine sample is needed, a needle is

inserted into the bladder before this structure is removed.53 The organs of the abdomen, including

the liver, pancreas, large and small intestine, and spleen, are then examined, removed and weighed

while tissue samples are taken.54 Next, rib cutters remove the chest plate to allow for inspection of

the thoracic cavity. With the sternum removed, the examiner is able to note the position and

condition of the heart and lungs before their removal.55

Organs are removed by one of two techniques: the Virchow method, which removes and dissects

each organ individually; or the von Zenker method, which removes an entire organ block before

dissecting specific body parts.56 No matter which technique is utilized, however, organs are carefully

sliced so that the pathologist can identify gross abnormalities, diseases, and other irregular findings.

The contents of hollow organs, such as the stomach and intestines, are also examined and may be

sent to a lab for further analysis. Samples of organ tissue may be taken so that slides can be viewed

for microscopic changes.57

Inspection of the brain requires an incision in the back of the head from one ear to the other.58 This

allows the scalp to be retracted forward to reveal the skull.59 A vibrating saw is then used to cut

through the bone, and the brain is lifted out for examination and measurement.60 The spinal cord is

removed using either an anterior *6 or posterior approach.61 This is coupled with an examination of

the muscles, soft tissues, airways and vascular structures of the anterior neck.62 The upper airway,

pharynx and esophagus are also removed for examination.63 In cases of occult neck injury, the

posterior neck will be dissected.64

Throughout this post-mortem examination, the physician searches for evidence of trauma or other

signs indicating the cause of death.65Tissue samples as well as bodily fluids, such as bile from the

gall bladder, vitreous humor from the eyes, and blood samples, will be taken as clinically

indicated.66 Bone marrow, both red and yellow, may also be sampled from the ribs or pelvis.67

Upon completion of the autopsy, the organs are loosely placed back into the body, returned in a

plastic bag or incinerated, and all openings are sewn closed.68 A written report, including the

objective forensic autopsy findings and the interpretations of the examiner, including cause and

manner of death, is prepared.69

IV. Establishing the Time of Death

Establishing the time of death can be crucial to a criminal investigation especially when forensic

investigators are collecting evidence that can place a suspect at the crime scene or to exculpate a

person with an alibi for that time period.70 The postmortem interval (PMI) is the phrase utilized for

that time period from the moment the person died until the corpse is discovered.71 However, the time

of death and PMI cannot be determined with exactness and are merely given as estimates and

ranges.72 Calculating the time of death is based upon such factors as the proof found at the crime

scene, environmental evidence where the body was found, and physical evidence present on or in

the corpse.73

When a person dies, the body starts to decompose, and this process continues until it becomes a

skeleton.74 The rate of decomposition, however, varies a great deal.75 For instance, a thin person

decomposes more slowly than an obese individual, and climate, geography, and season play a role

in the process.76 In fact, “the *7 knowledge of the internal sequential changes a dead body

undergoes in relation to the variations on the rate of their occurrence due to ambient temperature,

humidity, and the presence of insects or other predators are all considered when estimating the time

of death.”77

The traditional method of establishing the time of death is the rate method, and common factors

utilized include the rate of cooling of the body (algor mortis), the initiation and duration of rigor mortis

and livor mortis, as previously discussed, determination of potassium concentration in the vitreous

humor of the eyes, and forensic entomology.78 These post-mortem changes progress on a relatively

set schedule; however, many factors may affect the processes, and the time frame for the

development of these changes is based on studies under very controlled conditions, including an

ambient temperature of 75 degrees Fahrenheit.79 Unfortunately, the longer the PMI, the less

accurate the estimated time of death becomes.80

It is well known that the temperature of the body will change following death to the ambient or

surrounding temperature, which means that the decedent's temperature usually cools.81 The

temperature of the body can be taken rectally at the scene or in the liver or brain at the time of

autopsy.82 Several formulas are applied to estimate the rate of cooling after death; however, as a

general rule, the body loses an average 1.5 to 2 degrees Fahrenheit per hour for the first 12 hours

after the person's demise.83 Many factors affect this rate of cooling including ambient temperature,

clothing, body habitus, and body temperature before death.84

The vitreous humor potassium test is a forensic technique which correlates the amount of time

elapsed after death with the level of potassium concentration found in the vitreous humor of the

eye.85 Potassium steadily increases in the vitreous humor after death; however, existing formulas to

calculate the rate are restricted by confidence limits of almost 24 hours and are all best used in the

first 100 hours after death.86 Many factors affect the potassium levels, including any condition that

promotes accelerated decomposition (e.g. high ambient temperature).87 Additionally, vitreous humor

is not usually retrievable after approximately four days in temperate conditions.88

*8 The following chart sets forth the stages of decomposition, even though the length of each stage

may vary:Stage DescriptionInitial Decay The body looks fresh externally. Internally, however, it is decomposing because of bacteria

and related elements present before death.Putrefaction The body becomes swollen because of the gas that is forming inside the deceased, and there

is an odor of decaying flesh.Black Putrefaction

The flesh is of a creamy consistency with the exposed parts of the body turning black. The body will also start to collapse as the gases escape, and the odor of decay is very strong at

this point.Butyric Fermentation

The body dries out, and a cheesy smell develops.

Dry Decay The body is almost dry, and the rate of further decay at this point is slowed.89

Those who watch CSI may be familiar with the science of forensic entomology, the utilization of

insects as part of the investigation.90The simple fact is that a corpse attracts insects with different

behavioral habits and life cycles.91 Forensic entomology studies those insects in, on or surrounding a

body, as well as their eggs and larvae, to estimate the postmortem interval.92

There are two main methods used to estimate the approximate time of death *9 based on insect

infestation.93 One technique examines what types of insects are found on and in a decomposing

body, and the second method looks at the life stages and cycles of specific insects to determine how

long a person has been deceased.94 Which process is employed is largely dependent upon the

amount of time the individual has been dead.95 If a person has died less than one month earlier, the

life cycle of insects is examined, but if the decedent is thought to have died between one month to a

year earlier, the entomologist will examine the succession of different insects found.96

Research shows that insects invade cadavers in a predictable sequence.97 The first to appear are

the necrophagous98 species, which are attracted by the smell of decomposition.99 In fact, blow flies,

or Calliphoridae,100 are usually the first insects attracted to a body and can be present within minutes

following death,101 and flesh flies follow close behind.102 Soon thereafter, the body is invaded by

dermestid, or skin beetles, the same insects employed by taxidermists to strip skulls of their

flesh.103 Additional flies are then attracted to the decaying body, such as common house flies.104 This

cycle continues with predatory and parasitic insects that arrive to consume the beetle and maggot

larvae.105 With time, the body dries out, and beetles and moths settle in on the remains.106

The life cycle of the blow fly is particularly helpful in determining the time of death as well.107 Shortly

after these insects lay their eggs around the orifices of the *10 cadaver, they hatch into larvae known

as maggots.108 Maggots will hatch from their eggs in 16 to 24 hours and feed on the body from 7 to

12 days depending on the species.109 The larvae evolve though the prepupal,110 puparium,111 and

pupae stages,112 and this process generally takes between one and two weeks depending on the

environment.113 Knowing this life cycle, entomologists can then estimate the time of death based on

the age of the insects and/or larvae found on the corpse.114 Using the correlation between the size of

the larvae and its age, the examiner finds the largest maggot, typically known to be the oldest, and

determines the days since death by “measuring it in millimeters and add[ing] the number two.”115

V. The Difference Between a Medical Examiner and a Coroner

Autopsies are performed by a medical doctor with specialized training in pathology. Many states and

local governments hire a forensic pathologist to fulfill the role of medical examiner (ME) because

these individuals have “special training in analyzing and interpreting injuries and drug toxicity, and in

determining what factors have a role in causing death.”116 Some counties, on the other hand, employ

coroners who are elected officials who may or may not be physicians.117 While the function of the

medical examiner is medically based, the coroner's job is to declare an individual deceased, identify

the body, notify the next of kin, collect personal belongings, return the body to the deceased's family,

and sign the death certificate.118 Thus, it is important to keep the distinction between a coroner and a

medical examiner separate when examining the statutory authority granted to medical examiners, for

many of these statutes are applicable to those who are medically trained and have the legal right to

perform an autopsy.119

VI. Consent and Statutory Authority for an Autopsy

Autopsies require the consent of the next of kin120 in the absence of a suspicious death invoking the

jurisdiction of a governmental unit. In fact, a number of states *11 have laws that impose an

affirmative duty on a hospital and its physicians to seek permission before performing an autopsy,

and some even make it a crime to perform an unauthorized autopsy or a post mortem examination

without appropriate permission.121

Ideally, consent should be obtained prior to an individual's death, but most often the next of kin must

grant permission on behalf of the deceased.122 This consent may cover the removal of specific

organs or the retention of these body parts for future research or education.123 Some argue that

consent for an autopsy implies consent for retention, but the public may not know about this

assumption, so informed consent requires the family to be made aware of possible organ

retention.124

Statutes governing the right to perform autopsies and the formalities for the consent are quite

different and varied.125 Most states, however, have general statutes under public health regulations,

criminal procedure codes, or descriptions of county medical examiner or coroner duties that govern

when and by whom an autopsy is done. The following is a partial listing:State StatuteAlabama Ala. Code 1975 § 15-4-2Alaska AS § 12.65.025Arizona A.R.S. § 11-594Arkansas A.C.A. § 14-15-302California West's Ann. Cal. Ins. Code § 10350.10Colorado C.R.S.A. § 30-10-606Connecticut C.G.S.A. § 19a-286Delaware 29 Del. C. § 4707Florida West's F.S.A. § 925.09Hawaii HRS § 841-14.5Illinois 410 ILCS 505/2Indiana IN ST 16-36-2-4Iowa I.C.A. § 331.802Kansas K.S.A. 65-2893Louisiana LSA-C. Cr. P. Art. 105Maine 22 M.R.S.A. § 3028

Maryland MD Code, Health - General, § 5-310Massachusetts M.G.L.A. 38 § 2Michigan M.C.L.A. 333.2855Minnesota M.S.A. § 390.11Mississippi Miss. Code Ann. § 41-37-25Missouri V.A.M.S. 194.115Montana MCA 46-4-103Nebraska Neb. Rev. St. § 23New Hampshire N.H. Rev. Stat. § 611-B:17New Jersey NJ ADC 13:49-1.1New Mexico N.M.S.A. 1978, § 24-11-7New York McKinney's Public Health Law § 4209North Carolina N.C.G.S.A. § 130A-398Ohio R.C. § 313.13Oklahoma 21 Okl. St. Ann. § 1154Oregon O.R.S. § 97.082Pennsylvania 16 P.S. § 1238Rhode Island Gen. Laws 1956, § 23-4-1South Carolina Code 1976 § 44-43-730South Dakota SDCL § 34-26-2Tennessee T.C.A. § 38-7-106Texas Vernon's Ann. Texas C.C.P. Art. 49.35Utah U.C.A. 1953 § 34A-2-603Vermont VT ST T. 18 § 510Virginia VA Code Ann § 32.1-285Washington West's RCWA 68.50.100West Virginia W. Va. Code, § 61-12-3Wisconsin W.S.A. 979.04

*12 For example, North Carolina provides that, if, in the opinion of the medical examiner, it is

advisable and in the public interest that an autopsy or other study be made, or, if an autopsy or other

study is requested by the district attorney or by any superior court judge, an autopsy shall be made

by the medical examiner.126 Florida grants authority to state attorneys to order autopsies if they

decide “it is necessary in determining whether or not death was the result of a crime.”127

Consent for an autopsy is also addressed in some manner under the HIPPA Privacy Rule,128 for

even though this rule deems that privacy rights end at death, it has been used to balance the family

members' privacy rights against the public *13 interest in autopsy-obtained tissues.129 However,

autopsies can be performed without consent in cases of motor vehicle deaths, deaths of prisoners,

patients in hospitals for the mentally ill, and deaths associated with possible public health risks.130

Medical examiners obtain jurisdiction to perform medical-legal investigations of decedents by

statute.131 These laws help ameliorate conflicts that may occur when a relative objects to a

suspicious death autopsy, but the wording of each state statute can be quite general or specific and

may lend itself to loose interpretation.132 Medical examiners, however, are usually protected from

liability under the theory of governmental immunity so long as the public official's actions are

discretionary, fall within the scope of the statutory authority, and are done without

malice133 Generally, the medical examiner's rights supersede those of the family if an autopsy is

required because of accidental or suspicious circumstances.134

An exception to the consent rule notes that constitutional property rights end at death, thus “some

courts have interpreted federal and state law to exclude the necessity for consent to retain organs

upon obtaining consent for the autopsy, arguing that these already expired ‘property’ rights cannot

be claimed by the next of kin.”135 Characterizing the body as property allows for the application of

due process and the taking clauses of the Fifth and Fourteenth Amendments when bodily tissues

are removed.136 Courts began to acknowledge survivors' rights for the disposition of a dead relative's

body in the early part of the 1900s137 and these rights have come to be known as “quasi-property

rights,” as they are limited in scope.138 However, since inconsistencies remain between jurisdictions

with regards to property rights in corpses, a cause of action for unlawful mutilation of a corpse is a

more recognized means by which survivors can recover damages.139

*14 VII. The Tort of Wrongful Autopsy

From as early as Sophocles' Antigone140 in 442 B.C., there has been a long history requiring the

proper treatment of the dead, which is premised upon the idea that a wrong committed to a decedent

is an affront to the living and the “disrespectful treatment of the body” will not be tolerated.141 As a

result, the obligations and rights of the living and the requirement to bury the dead have long been

recognized and enforced.142

Despite this ancient tradition, a private cause of action for unlawful dissection or mutilation was not

viable at common law.143 As noted in the ecclesiastical law of England, “the law did not recognize a

property right in a dead body, and thus a wrong to the body itself was not actionable.”144 This

changed in the United States in the later part of the Nineteenth Century when the courts started to

allow recovery for the mutilation of a body.145

Larson v. Chase146 appears to be the first case to recognize a cause of action for these types of

cases.147 The facts show that a widow filed suit for mental suffering and nervous shock, alleging that

she was the person charged with the burial of her dead husband's body.148 In denying the

defendant's demurrer to the complaint, the court noted that “the right to possession of a dead body

for the purposes of decent burial belongs to those intimately and closely connected with the

deceased by domestic ties, and that this is a right which the law will recognize and

protect.”149 *15 This right belongs to the surviving spouse or next of kin, and that person has the legal

right to the custody of the body for purposes of preservation, preparation and burial.150 Any

interference with that right by disturbing or mutilating the body is an actionable wrong.151 Over the

years subsequent to this decision, the courts have made it abundantly clear that such an action is

intended to compensate family members for the mental and emotional consequence occasioned by

the improper dissection of the decedent's remains.152

It is now part of accepted jurisprudence that a viable claim exists for the wrongful mutilation of a

corpse. The foundation for such a cause of action is the interference with the right of the spouse or

next of kin to inter the body in the condition in which it was discovered when the person died.153 In

fact, case law has established two distinct theories of liability; a claimant may establish a cause of

action by demonstrating that the autopsy was unauthorized or, if authorized, that the procedure

exceeded the scope of the consent.154

Proof of a claim for wrongful autopsy does not require evidence that the claimant saw the procedure

or viewed the body after the postmortem examination was performed even though the claim is

basically one for infliction of emotional distress.155 A number of jurisdictions have also noted that the

aggrieved party need not assert elements of damage in addition to emotional distress in order to

recover for a negligent autopsy.156 Jurisdictions that recognize this tort are more concerned “with the

effect the mutilation has on the psychological, rather than physical, well-being of the surviving

relatives.”157

VIII. Decision to Perform an Autopsy

The autopsy process exposes the medical examiner, coroner, or pathologist to civil liability on

several fronts - from the initial decision to conduct a post-mortem examination and proper dissection

during the procedure, to retention of body parts for additional analysis.158The following is a

discussion of some of the legal issues.

*16 A. The Ability of an Insurance Carrier to Order an Autopsy

The ability of an insurance carrier to order an autopsy when the cause of death is in question is

contained in state laws and insurance policies. For example, California159 gives an insurer the right to

“examine the person of the insured when and as often as it may reasonably require during the

pendency of a claim hereunder and to make an autopsy in case of death where it is not forbidden by

law.”160 Maine allows an insurer to “make an autopsy in case of death where it is not forbidden by

law,”161 and the Virgin Islands,162New Jersey,163 Nevada,164 Puerto Rico,165 and Alaska166 have similar

provisions. Idaho even has a specific statute for autopsies performed on decedents possibly infected

with Creutzfeldy-Jakob disease.167

A number of insurance policies also contain clauses allowing the carrier to mandate a post mortem

examination.168 The following is a sample clause found in an insurance policy:

Physical Examination and Autopsy: The insurance company at its own expense shall have the right

and opportunity to examine the person of the insured when and as often as it may reasonably

require during the pendency of a claim hereunder and to make an autopsy in case of death where it

is not forbidden by law.169

In fact, the laws of some states even mandate that an insurance policy contain this type of

provision.170 The Insurance Code of Texas provides an example of the language that must be

contained in an accident and health policy:

*17 Physical Examinations and Autopsy: The insurer at its own expense has the right and

opportunity to conduct a physical examination of the insured when and as often as the insurer

reasonably requires while a claim under the policy is pending and, in case of death, to require that

an autopsy be conducted if not forbidden by law.171

Courts have consistently recognized the validity and necessity of these provisions as a reasonable

protection against fraud.172 On the other hand, a carrier securing the performance of an autopsy

without the necessary right is responsible for damages even though an authorized official requested

the procedure and it was conducted in the presence of a coroner.173

Interestingly, a number of the relevant cases dealing with an insurance company's ability to request

an autopsy pre-date 1940. For instance, in Mutual Life Ins. Co. of New York v. McCulloch, the

decedent had purchased two life insurance policies that contained double indemnity

provisions.174 These contracts contained a provision that allowed the insurer “to examine the body

and to make an autopsy unless prohibited by law.”175 The facts show that the insured fell down a

flight of stairs and sustained a fractured skull, causing his death.176 Nevertheless, one newspaper

reported the man died from heart failure.177 The carrier made no request for an autopsy before

burial.178 A few weeks later, however, after a claim for double indemnity was advanced, the carrier

requested the body be exhumed for an autopsy.179 The family of the decedent filed an injunction to

enjoin the carrier from having the autopsy performed.180The court noted that a provision in an

insurance policy allowing for an autopsy is a valid and enforceable clause, and that the failure to

accede to a demand for an autopsy is a violation of the policy.181 Nevertheless, this right is not

absolute and must be timely and made in good faith.182 This means, whenever possible, an autopsy

should be conducted before burial as a matter of public policy and sentiment. Since the demand for

the autopsy in this case was made two weeks after the insured's death, the Fourth Circuit concluded

that exhuming the body would not be reasonable.183

Forty years later, the court in Insurance of North America v Achor184 again found against an insurer's

request for an autopsy on the grounds that a request five *18 months after burial was not

reasonable.185 In making its ruling, the court noted that “such provisions in a policy have been held

valid requirements where the request for autopsy is seasonably and reasonably made, but a refusal

to permit an autopsy does not vitiate the policy if the request therefore is not seasonably and

reasonably made.”186 The court also adroitly pointed out that there is a split of opinion as to whether

the ability to order an autopsy is forfeited if the request is not made before interment.187As it stated,

“[We] think the better view to be that failure to make the request before interment does not

necessarily forfeit the right, but is relevant only in determining whether the request was seasonably

and reasonably made under the circumstances shown to exist in the case.”188

More recently, in Arnett v. Jackson National Life Insurance Co.,189 a death certificate indicated that

the insured died from a “drug-drug interaction,” but an autopsy was not performed.190 The carrier

denied the claim for payment of the accidental death benefit because of the widow's failure to submit

evidence of an autopsy demonstrating that the insured's death resulted from an “accidental internal

injury”.191 The plaintiff filed suit and argued that the autopsy requirement in the insurance policy was

contrary to Louisiana law and public policy.192 More specifically, the widow argued that the insurance

policy, which mandates proof of the decedent's accidental internal injury “visibly manifested on an

autopsy,” contravened Louisiana law and was less favorable to the insured because the policy

places the requirement to seek an autopsy on the beneficiary rather than on the insurer.193 The court

granted summary judgment in favor of the carrier, noting that Louisiana law “provides that health and

accident insurance policies must contain specific provisions listed in the statute, or at the option of

the insurer, provisions ‘which in the opinion of the commissioner of insurance are not less favorable

to the policyholder’ than those listed in the statute.”194 Ultimately, the court found the autopsy

provision in the insurance policy no less favorable to the policyholder than the statute.195 It was noted

that the appropriate law unambiguously holds that the initial burden is placed on the beneficiary to

demonstrate that the insured's death was covered under the policy.196 This language clearly

mandated that, in order to claim the added benefits for an accidental death, “the beneficiary must

present proof of an autopsy.”197 The failure to perform this procedure demonstrated that the widow

had not met her burden of proof with respect to the insurance contract.198Furthermore, *19 the court

noted that the death certificate was not a substitute for “the policy's requirement that the beneficiary

submit proof of an autopsy.”199

B. Who Can Consent to an Autopsy?

State statutes vary as to who can lawfully consent to an autopsy. It is a generally accepted principle

within the United States, however, that “the right to possession of a body for the purpose of burial

belongs to the surviving spouse” or, in the absence of such a spouse, “the next of kin.”200 This means

that spouses, adult children and parents can consent to an autopsy, but this right can be superseded

in cases of suspicious deaths or if a state statute addresses specific scenarios, such as requiring an

autopsy in the event of a child's death.201 Scarpaci v. Milwaukee County is illustrative of the problem

when the medical examiner acts without authority.202 The facts show that the parents of the decedent

sued the county coroner for wrongful autopsy, claiming there were no statutory circumstances

requiring one and the procedure was against the parents' wishes.203 In denying the defendant's

motion to dismiss, the court noted that the law is clear that the family of the deceased has a legally

recognized right to bury the remains of the family member “in their integrity and without mutilation.

Thus, the next of kin have a claim against one who wrongfully mutilates or otherwise disturbs the

corpse.”204 The medical examiner's authority to independently “perform an autopsy is limited by

statute” and the medical examiner has no power “to conduct or order an autopsy.”205 In this

jurisdiction, the medical examiner can order an autopsy whenever there is reason to believe that

death may have been due to “murder, manslaughter, homicide resulting from the negligent control of

a vicious animal, homicide by reckless conduct, homicide by negligent use of a vehicle or firearm, or

homicide by intoxicated use of a vehicle or firearm[,]” or “self-murder or unexplained or suspicious

circumstances.”206 Thus, the medical examiner is not authorized to conduct an autopsy to inquire into

the cause and manner of every death.207 Regardless of how well-motivated the medical examiner's

intentions may be, and however significant the result of his autopsy may be to medical science, this

official's power to perform an autopsy is limited by law to specified circumstances.208 Thus, since the

complaint alleged that there was no subjective determination requiring an autopsy, the case

was *20allowed to proceed despite the assertion of immunity of a governmental official.209 However,

if the medical examiner can prove that he made a subjective determination that an autopsy is

advisable and acts within the scope of his office, he will not be liable for wrongful autopsy.210

Adult children have the authority to consent to their deceased parent's autopsy, and in many cases,

only one person will constitute a decedent's “next of kin” whose rights regarding that decedent's

dead body are judicially protectable.211 Surprisingly, however, some courts have held that a

consensus must be reached by all of the children. For instance, in Rakow v. State, the child of a

deceased state hospital patient brought suit against the State because she did not consent to her

father's autopsy to be done for educational purposes though her four siblings did.212 The plaintiff

testified that she was emotionally upset by the autopsy on her father and had trouble sleeping at

night because of it.213 She also noted that her failure to return the consent form was her objection to

the post mortem procedure.214 The State argued that public policy bars any action for intentional

infliction of emotional distress.215 The court noted that the right to an autopsy exists only by statute or

permission of the spouse or next of kin.216 The law in question mandated written consent of the ‘next

of kin’ for a hospital to perform an autopsy within forty-eight hours of a patient's death.217 In this case,

the “next of kin” had not been defined by previous court decisions, so the court concluded that the

duty for a proper burial belonged to all five children as an equal group.218 Under the circumstances,

the hospital had the burden to obtain the written consent of all of the nearest next of kin.219

Some hospitals may require family members or individuals to sign a “consent to autopsy”

agreement, but even with the execution of this document, ambiguous language can limit the scope

of authority and extent of the autopsy.220 This was demonstrated in Coleman v. Sopher, where the

decedent, a thirty-nine year old man, died of a heart attack.221 His wife consented to an autopsy to

determine whether *21 occupational pneumoconiosis contributed to his death.222 The consent form

authorized the hospital and its agents to remove organs and parts for microscopic analysis.223 The

subsequent autopsy report noted that “the heart is not removed from the body.”224 Unfortunately, the

report made no mention of the occupational pneumoconiosis, so the body had to be exhumed for a

second examination.225 At this time, it was discovered that the decedent's heart was missing.226 Suit

was then instituted for infliction of emotional distress.227 In response to the defendant's assertion of

immunity, the plaintiff argued that the medical examiner's actions exceeded the scope of his

authority.228 In finding for the wife of the decedent, the court noted that a public official is not entitled

to immunity if his actions are fraudulent, malicious, or otherwise oppressive.229 Although consent was

given for an autopsy in this case, the consent form was ambiguous because it did not identify the

agreed upon purpose for the examination. Also, the scope of authority was exceeded because of the

removal of the decedent's organs without the necessary permission and the subsequent

concealment of that fact.230

C. Religious Beliefs

Certain religions require the body of the deceased to be buried in a specific manner, and cremation

or embalming might conflict with those beliefs.231 For instance, those from more westernized

environments usually have less cohesive connections with religion, traditions and beliefs, and have a

more lenient attitude towards autopsies.232 Non-westernized or less diverse cultures, however, have

more rigid beliefs and practices dealing with death, and they more frequently object to post mortem

examinations on religious grounds.233 Islam and Judaism are examples of religions that prohibit

autopsies as a violation of the sanctity of keeping the human body intact.234 While Christian

Scientists do not overtly object to autopsies, they are frowned upon.235 Hindus have no objection to

post mortem examinations, but they believe that all organs must be returned to the corpse.236

*22 So, what happens if an autopsy is required by law but it is against the next of kin's religious

beliefs? The most significant protection of a person's religious convictions is contained in those

statutes that restrict the authority of a medical examiner to conduct autopsies when an objection is

premised on religious beliefs.237 If the medical examiner is notified that the autopsy is contrary to the

decedent's religion, he is barred from conducting a post mortem examination with only limited

exceptions.238 Because of the need to perform these types of procedures in an expeditious fashion,

these laws generally impose a forty-eight-hour delay for ascertaining whether action by the coroner

is appropriate.239 Generally, the next of kin or the coroner may file a lawsuit to ascertain whether the

examination should be performed over a religious objection.240 If someone with an interest does raise

an objection, the post mortem examination will not be conducted unless there is an overriding public

necessity, or if there is an interest that outbalances the decedent's right to exercise his or her

religious belief.241

Ohio provides an example of a state law on the issue where it notes:

If a relative or friend of the decedent informs the coroner that an autopsy is contrary to the deceased

person's religious beliefs, or the coroner otherwise has reason to believe that an autopsy is contrary

to the deceased person's religious beliefs, and the coroner concludes the autopsy is necessary, but

not a compelling public necessity, the coroner may file a petition in a court of common pleas seeking

a declaratory judgment authorizing the autopsy.242

Federal law deals with the issue of a person who dies in a penal facility by giving the executive

officer of the Federal prison the authority to order an autopsy and related scientific tests to be

performed on the body of a deceased inmate in the event of homicide, suicide, fatal illness, accident,

or unexplained death, when it is determined that such autopsy or test is necessary to detect a crime,

maintain discipline, protect the health or safety of other inmates, remedy official misconduct, or

defend the United States from civil liability arising from the administration of the facility. However, to

the extent consistent with the needs of the autopsy and state law, the protection of religious beliefs

with respect to such autopsies shall be observed.243

The following are examples of court decisions on the topic. In Kohn v. U.S.,244 the family of a Jewish

serviceman, who was killed by a fellow soldier, brought action, in part, when the decedent's organs

were retained by the government, his body embalmed, and his organs subsequently cremated, a

direct conflict with their religious beliefs.245 In holding that the United States was liable to the parents

of the*23 deceased for damages, the court noted that:

[M]ost religions in the world hold that the remains of a deceased must be treated with honor and

respect. Judaism believes in the principle that body and soul are sacred because both are the

handiwork of God and hence are entitled to reverence. In accordance with this premise, Jewish law

teaches that the whole body should be buried, and that if parts have been removed, they must be

returned and buried with the rest of the body.246

Recovery of damages, however, is not always successful in the case of wrongful autopsy based on

religious beliefs. For instance, in Harris-Cunningham v Medical Examiner of New York County, a

widow brought suit against the medical examiner for an autopsy done contrary to the decedent's

religious beliefs.247 It was held that the medical examiner did not have a duty to obtain the family's

consent since he had no reason to believe that the autopsy was contrary to the decedent's religious

beliefs.248

IX. Conclusions

While autopsies can help advance knowledge of the human body, exculpate an individual from

criminal liability, or prevent a public health emergency, there are specific rules and regulations

governing their performance. Specific state statutes detail when and by whom an autopsy can be

performed, but lawsuits often arise when the law is unclear. Insurance providers can request an

autopsy as can a medical examiner, but individuals can object to this procedure based on religious

beliefs. Ultimately, recovery of damages based on the tort of wrongful autopsy is grounded in the

infliction of emotional distress on the family of the deceased because of the wrongful mutilation of

the corpse.

Footnotesa1

Samuel D. Hodge, Jr. is a professor and chair of the Legal Studies Department at Temple

University where he teaches both law and anatomy.

aa1

Nicole Marie Saitta currently attends Temple University Beasley School of Law where she is on the

Temple Law Review staff. She received an M.A. in English Literature from Villanova University and

obtained a certificate from New York University's Publishing Institute in the School of Continuing and

Professional Studies.

1

Giovanni Battista Morgagni, Letter xvi.,Art. 25 (quoted in Edward W. Adams, Founders of Modern

Medicine, 1 Med. Libr. & Hist. J. 270, 276 (Oct. 1903)).

2

Melissa Conrad Stöppler, Autopsy (Post Mortem Examination, Obduction), MedicineNet,

http://www.medicinenet.com/autopsy/article.htm (last visited Mar. 17, 2012).

3

Id.

4

Kelly v. Brigham & Women's Hosp., 745 N.E.2d 969, 973 (Mass. App. Ct. 2001).

5

Id.

6

See, e.g.,United States v. Hammer, 121 F. Supp. 2d 794, 801 (M.D. Pa. 2000) (citing number of

cases describing religious objections to autopsies).

7

Kellogg v. Office of the Chief Med. Exam'r of City of New York, 735 N.Y.S.2d 350, 357 (N.Y. Sup. Ct.

2001).

8

R.B. Kotabagi et al., Clinical Autopsy vs Medicolegal Autopsy, 61 Med. J. Armed Forces India 258,

258 (2005), http:// medind.nic.in/maa/t05/i3/maat05i3p258.pdf.

9

Marshall Allen, Without Autopsies, Hospitals Bury Their Mistakes, ProPublica (Dec. 15, 2011, 11:36

AM), http:// www.propublica.org/article/without-autopsies-hospitals-bury-their-mistakes.

10

Id.

11

Id.

12

Id.

13

Id. The article notes hospitals have strong financial reasons to avoid the procedure. An autopsy runs

about $1,275, but Medicare and many private insurers do not pay for them directly, usually limiting

payment to procedures used to diagnose and treat the living.

14

Richard Prayson, Autopsy: Learning from the Dead 7 (2007) (explaining “[t]he primary cause of

death is the disease or injury that started the events that lead to death;” the immediate cause of

death is “the disease, injury, or complication that was a consequence of the primary cause of death;”

and the intermediate cause of death is “the sequence of pathological events leading from the

primary ... to the immediate cause of death”).

15

R.B. Kotabagi, S.C. Charati & Maj D. Jayachandar, Clinical Autopsy vs. Medicolegal Autopsy, 61

Med. J. Armed Forces India 258, 258 (2005) http://medind.nic.in/maa/t05/i3/maat05i3p258.pdf.

16

Id.

17

David Bracey, UC's Clinical Autopsies Aid the Living, Acad. Health Ctr. Findings (Aug. 2006),

http://healthnews.uc.edu/publications/findings/?/ 2981/2990.

18

Robert Valdes, How Autopsies Work, HowStuffWorks.com, http://

science.howstuffworks.com/autopsy.htm (last visited Mar. 17, 2012).

19

See Kotabagi, supra note 15, at 259 (stating surgeons performing clinical autopsies in Armed Forces

Medical Services in absence of pathologist is not a correct practice).

20

Id.

21

Prayson, supra note 14, at 78.

22

Beth Pearsall, Improving Forensic Death Investigation, National Institute of Justice,

http://www.nij.gov/journals/267/investigation.htm (last visited Mar. 17, 2012).

23

Garry F. Peterson & Steven C. Clark, Forensic Autopsy Performance Standards, Nat'l Ass'n of Med.

Exam'rs, 9 (2012), available at http:// thename.org/index2.php?

option=com_docman&task=doc_view&gid=160&Itemid=26.

24

See id. (stating purpose of section is “to establish minimum standards of cases requiring forensic

autopsy”).

25

Id.

26

Valdes, supra note 18.

27

Id.

28

Before 1700, there was generally a negative attitude towards the performance of a post mortem

examination. Melissa Stöppler, “Autopsy (Post Mortem Examination and Obduction)”

MedicineNet.com, supra note 2.

29

Prayson, supra note 14, at 31.

30

Id. at 39.

31

Id. at 43.

32

Id. at 90

33

Id. at 43.

34

Peterson, supra note 23, at 13.

35

Id. at 12.

36

Id.

37

Id. at 15.

38

Garry Peterson and Steven Clark, Forensic Autopsy Performance Standards, The National

Association of Medical Examiners 14, available at http://thename.org/index2.php?

option=com_docman&task=doc_ view&gid=160&Itemid=26 (last visited Mar. 17, 2012).

39

Id.

40

S. Erin Presnell & Stephen J. Cina, Postmortem Changes, Medscape,

http://emedicine.medscape.com/article/1680032-overview#aw2aab6b3 (Last visited March 17,

2012).

41

Id.

42

See Helton v. Singletary, 85 F.Supp.2d 1323, 1330 (S.D. Fla., 1999).

43

Presnell & Cina, supra note 40.

44

See generally Robert C. Janaway et al., Microbiology and Aging, 314 (2009).

45

Hocker v. O'Klock, 158 N.E.2d 7, 9 (Ill. 1959).

46

Melissa Conrad Stöppler, Autopsy, eMedicine Health, http://

www.emedicinehealth.com/autopsy/article_em.htm (last visited Mar. 17, 2012).

47

Id.

48

Prayson, supra note 14, at 47.

49

Ed Friedlander, Autopsy, http://www.pathguy.com/autopsy.htm (last visited Mar. 17, 2012).

50

Philipp Rezek & Max Millard, Autopsy Pathology: A Guide for Pathologists and Clinicians, 163

(1963).

51

Prayson, supra note 14, at 47.

52

Id. at 48.

53

Id. at 48.

54

Id. at 49.

55

Id. at 49.

56

Prayson, supra note 14 at 50-1.

57

Id. at 52.

58

Id. at 53.

59

Id.

60

Lawrence Frisch, Autopsy, Health Information, Aurora Health Care,

http://www.aurorahealthcare.org/yourhealth/healthgate/getcontent.asp? URLhealthgate=

%2214771.html%22 (last visited on Mar. 17, 2012).

61

Prayson, supra note 14 at 55.

62

Peterson & Clark, supra note 23 at 25.

63

Id.

64

Id.

65

Id.

66

Kathleen Romito, Autopsy - How It Is Done, Everydayhealth, http:// www.everydayhealth.com/health-

center/autopsy-how-it-is-done.aspx (last visited on Jan. 29, 2013).

67

Prayson, supra note 14 at 56.

68

Valdes, supra note at 18.

69

Peterson & Clark, supra note 23 at 25.

70

Time of Death, eNotes, http://www.enotes.com/forensic-science/time-death (last visited Oct. 9,

2011).

71

Id.

72

Id.

73

Id.

74

Body Farm, eNotes, http://www.enotes.com/body-farm-65299-reference/body-farm (last visited Mar.

17, 2012).

75

Id.

76

Id.

77

Time of Death, eNotes, http://www.enotes.com/forensic-science/time-death (last visited Oct. 9,

2011).

78

Id.

79

Presnell & Cina, supra note 40.

80

Id.

81

People v. Hendrix, No. B190607, 2007 WL 4532766 at *3 (Cal. App. 2 Dist. Dec. 27, 2007).

82

Time of Death, eNotes, http://www.enotes.com/forensic-science/time-death (last visited Oct. 9,

2011).

83

Presnell & Cina, supra note 40 at Definitions section.

84

Id.

85

See generally Dreher v. Attorney General of New Jersey, 273 Fed. Appx. 127 (C. A. 3 (N.J. 2008)).

86

Presnell & Cina, supra note 40.

87

Id.

88

Id.

89

Morten Staerkeby, Forensic Entomology Overview, CienciaForense,

http://www.cienciaforense.com/Pages/Entomology/Overview.htm (last visited Apr. 21, 2012).

90

Forensic Entomology - Insects Solving Crimes, About.com, http://

insects.about.com/od/forensicentomology/Forensic_Entomology_Insects_Solving_ Crimes.htm (last

visited Mar. 17, 2012). According to Jon Sands, A Fly For the Prosecution: How Insect Evidence

Helps Solve Crimes, Book Review, 48-DEC Fed. Law 80, November/December 2001, one can learn

more about the protocols and procedures for collecting entomological evidence during murder

investigations by examining, Vernon J. Gebreth, Practical Homicide Investigation: Tactics,

Procedures and Forensic Techniques, 103-104, 227-229 (1997). As for the protocols and

procedures a science laboratory should follow, see Janine Arvizu, Forensic Laboratories: Shattering

the Myth, The Champion (May 2000), at 18; Scott Bales, Turning the Microscope Back on Forensic

Scientists, Litigation (Winter 2000) at 51.

91

Id.

92

Time of Death, eNotes, http://www.enotes.com/forensic-science/time-death (last visited Oct. 9,

2011).

93

Forensic Entomology - Can Bugs Help Determine Time of Death?, Crime Blog,

http://www.crimemuseum.org/blog/forensic-entomology-can-bugs-determine-time-of-death (last

visited Mar. 17, 2012).

94

Id.

95

Id.

96

Id.

97

Debbie Hadley, How Crime Scene Insects Reveal the Time of Death of aCorpse; Forensic

Entomology - Calculating the PostmortemInterval, About.com,

http://insects.about.com/od/forensicentomology/a/CSItimeofdeath.htm (last visited Mar. 17, 2012).

98

Necrophagous means to feed on a corpse. Merriam-Webster Dictionary, 2013, http://www.merriam-

webster.com/dictionary/necrophagous (last visited Apr. 21, 2012).

99

Hadley, supra note 97.

100

SFU Museum of Archaeology and Ethnology, Forensic Entomology or the Use of Insects in Death,

Investigating Forensics, http:// www.sfu.museum/forensics/eng/pg_media-media_pg/entomologie-

entomology/ (last visited Jan. 23, 2013).

101

Forensic Entomology - Can Bugs Help Determine Time of Death?, Crime Blog,

http://www.crimemuseum.org/blog/forensic-entomology-can-bugs-determine-time-of-death (last

visited Mar. 17, 2012). Adult female blowflies will arrive at the scene of a body within minutes

following death and lay between 200 to 500 eggs. About one day later, if the body is in a moderately

warm climate, the eggs will hatch into larvae or maggots. Forensic Entomology: How Bugs Reveal

the Time of Death, http://www.apricotpie.com/jessica/forensic-entomology-how-bugs-reveal-the-

time-of-death (last visited Mar.17, 2012).

102

Hadley, supra note 97.

103

Id.

104

Id.

105

Id.

106

Id.

107

SFU Museum of Archaeology and Ethnology, Forensic Entomology or the Use of Insects in Death,

Investigating Forensics, http:// www.sfu.museum/forensics/eng/pg_media-media_pg/entomologie-

entomology/ (last visited Feb. 18, 2013).

108

Id.

109

Michael Martin, Insect Evidence 12 (Capstone Press 2007).

110

This is the inactive stage in the development of insects, and is between the larva and pupal stages.

The Free Dictionary, http:// www.thefreedictionary.com/prepupal (last visited Feb. 18, 2013).

111

This refers to the stage when a maggot ‘sheds its skin,‘ causing the skin to contract and form a rigid

shell. Blow Flies: Their Life Cycle and Where to Look for the Various Stages,

http://users.usachoice.net/~ swb/forensics/BF.htm (last visited Apr. 17, 2012).

112

This stage refers to the development of the insect into an adult. Flies: All Stages of Life, Orkin,

http://www.orkin.com/flies/flies-all-stages-of-life/ (last visited Feb. 18, 2013).

113

Morten Staerkeby, Forensic Entomology Overview, CienciaForense,

http://www.cienciaforense.com/Pages/Entomology/Overview.htm (last visited Feb. 18, 2013).

114

Id.

115

Gwendolyn Cuizon, Establishing Time of Death in a Homicide, Socyberty (Apr. 22, 2008),

http://socyberty.com/crime/establishing-time-of-death-in-a-homicide/4/.

116

Prayson, supra note 14, at 65.

117

Id.

118

Id., at 66.

119

See generally Prayson, supra note 14.

120

Harold Sanchez, Autopsy Request Process, Medscape Reference http://

emedicine.medscape.com/article/1730552-overview (last updated July 12, 2012).

121

Juseinoski v. New York Hosp. Med. Ctr. of Queens, 3 Misc. 3d 1106(A), 787 N.Y.S.2d 678 (Sup. Ct.

2004) rev'd, 18 A.D.3d 713, 795 N.Y.S.2d 753 (2005). For instance, New York Public Health Law §

4210-a provides: “[t] he director or person having lawful control and management of any hospital in

which a person has died may order the performance of an autopsy upon the body of such deceased

person, after first giving notice of the death to the next of kin of such person, unless the body is

claimed or objection is made to such autopsy by the next of kin within forty-eight hours after death,

or within twenty-four hours after such notice of death. In no case shall an autopsy or dissection be

performed upon anybody within forty-eight hours after death, unless a written consent or directive

therefor has been received from the person or persons legally entitled to consent to or to order such

autopsy or dissection.”

122

Prayson, supra note 14 at 88.

123

Id.

124

Id. at 88-89.

125

Id. at 90-92. For example, in Arizona, priority is given to whoever assumes custody of the body for

burial; South Carolina gives priority to the surviving spouse only if the spouse was still living with the

decedent; and Indiana, Utah, and West Virginia have a minimum age of 16 to consent if the

remaining next of kin are minors.

126

N.C. Gen. Stat. Ann. § 103A-389 (West 2013); N.C. Gen. Stat.. Ann. § 130A-389 (West 2013).

127

Fla. Stat. Ann. § 925.09 (West 2012).

128

The Health Insurance Portability and Accountability Act of 1996 (HIPAA), 29 U.S.C. § 1181 et seq.

129

Prayson, supra note 14, at 94. In addition, the Common Rule for the Protection of Human Subjects

partly protects an individual's privacy by establishing consent practices for use of tissue in research.

Id.

130

Id. at 95.

131

Michael Panella, Death Investigation Liability of Medical Examiners and Coroners: Proposed

Recommendations to Mitigate Legal Risks, 32 J. Legal Med. 449, 450 (2011).

132

See Id. (noting that Mr. Panella cites to the South Carolina Coroner's Act, S.C. Code Ann. § 17-5-

530 (2010) in which “a person has a duty to notify the coroner when death occurs by violence” but

the exact meaning of violence is not defined as it is in Pennsylvania's statute, 16 Pa. Stat. Ann. §

1237 (a) (3) (2001)). See also Kellogg v. Office of Chief Medical Examiner of New York, 735 N.Y.S.

2d 350 (Sup. Ct. 2001) (discussing how problems with statutory interpretation have led to litigation).

133

Panella, supra note 133 at 451-52.

134

Michael Scarmon, Brotherton v. Cleveland: Property Rights in the Human Body--Are the Goods oft

Interred with their Bones?, 37 S.D. L. Rev. 429, 434 (1992).

135

Prayson, supra note 14 at 78.

136

Erik Jaffe, She's Got Bette Davis' Eyes: Assessing the Nonconsensual Removal of Cadaver Organs

Under the Taking and Due Process Clauses, 90 Columbia Law Review 528 (1990).

137

See Pettigrew v. Pettigrew, 56 A. 878, 879 (Pa. 1904) (noting that the law confers a limited property

right in a dead body to those charged with the duty of burial). See also De Festetics v. De Festetics,

81 A. 741, 742 (N.J. Ch. 1911) (stating that when no executor of the estate exists the duty and rights

then devolve to the next of kin, where the nearest of kin “shall have the strongest right”); Koerber v.

Patek, 102 N.W. 40, 42 (Wis. 1905) (arguing that courts should protect the legal right to perform a

burial of the deceased by the surviving nearest relative).

138

Scarmon, supra note 134 at 438-40; De Festetics, 81 A. 741, at 742.

139

Id. at 434-435, 441 (arguing that the Uniform Anatomical Gift Act (UAGA) (Unif. Anatomical Gift Act

§ 8, 8A U.L.A. (Westlaw, 1987)) further defines the rights of individuals who have an interest in the

decedent's remains and provides another layer of protection to the medical examiner. The UAGA

has been adopted by all 50 states and the District of Columbia in some variation (1968 and 1987

saw two variations of the Act), and this Act standardizes organ donation using provisions for 1) who

may be donors; 2) what parties are authorized as donees, and 3) the rights, duties and procedures

to be followed when making and receiving an anatomic donation. Id. at 434-35; 8A U.L.A. §§ 2-7, . In

addition, presumed consent laws make up for the inadequacies of the UAGA by allowing for the

removal of specific tissues, primarily corneas and pituitary glands, during an autopsy when

knowledge of contrary intent is absent); Id. at 435, n.50 (Another group of laws that incorporate the

1987 provisions to the UAGA limit the coroner's discretion by requiring “reasonable efforts to notify

the appropriate persons and obtain their consent for donation.” If efforts for such consent prove

futile, then the coroner has the right to remove organs and other tissues, and under these

“reasonable efforts” provisions, all organs are included which broadens the scope of the presumed

consent laws); See also Jaffe, supra note 136, at 528 (citing to three state court cases (Florida

Supreme Court in State v. Powell, 497 So. 2d 1188 (Fla. 1986), cert. denied, 481 U.S. 1059

(1987); Ga. Lions Eye Bank v. Lavant, 335 S.E.2d 127 (Ga. 1985); Tillman v. Detroit Receiving

Hosp., 360 N.W.2d 275 (Mich. Ct. App. 1984)), noting they have considered constitutional

challenges to presumed consent laws, and all three held that common law interests relative to a

burial do not rise to the level of constitutionally protected liberty interests, and thus do not raise due

process concerns).

140

Sophocles, Antigone (DW Myatt trans., DW Myatt, 1994) available at

http://ia600503.us.archive.org/10/items/Sophocles-Antigone_817/sophocles-antigone.pdf.

141

Liberman v. Riverside Mem'l Chapel, 225 A.D.2d 283, 284-285, (N.Y. App. Div. 1996); Kellogg v.

Office of Chief Med.l Exam'r of N.Y., 735 N.Y.S.2d 350 (S. Ct., Bx.Co., 2001).

142

Kellogg, 735 N.Y.S.2d at 356; Patterson v. Patterson, 59 N.Y. 574, 583 (1875).

143

Kellogg, 735 N.Y.S.2d at 356.

144

Id.; See also Darcy v. Presbyterian Hosp. in the City of N.Y., 202 N.Y. 259, 261-262 (1911) rearg.

denied, 96 N.E. 1113, 203 N.Y. 547 (1911) (noting that ecclesiastical law in England held no

property right in a dead body, nor an action for “damages for the willful or negligent mutilation of the

body”).

145

Kellogg, 735 N.Y.S.2d at 356.

146

47 Minn. 307 (1891).

147

Id.

148

Id. at 308.

149

Id at 309.

150

Id.

151

Id. at 310; See also Foley v. Phelps, 1 A.D. 551, 554 37 N.Y.S. 471 (N.Y. App. Div. 1896) (stating

that “the possession of a dead body for the purposes of preservation and burial is a legal right--one

which the law recognizes and protects, and that the violation of that right, by an unauthorized and

unlawful mutilation of the corpse before burial, gives rise to an action for damages”); Burney v.

Children's Hosp., 169 Mass. 57, 59-60, 47 N.E. 401 (Mass. 1897) (holding that there is an actionable

wrong when one interferes with the body of a child belonging to another).

152

Kellog, 189 Misc. 2d at 763; See also Beller v. City of New York, 269 A.D. 642, 643 (N.Y. App. Div.

1945) (finding that mutilating the remains of a body without consent entitle those with possession to

damages for mental suffering).

153

James O. Pearson, Annotation, Liability for Wrongful Autopsy, 18 A.L.R. 4th 858 (1982).; see

also 25A C.J.S. Dead Bodies §18 (describing a decedent's rights to dispose of his own body); 18

Am. Jur. 2d Coroners § 5 (2012) (describing when an action may be maintained against a medical

examiner or coroner).

154

Pearson, supra note 153, at §2(a).

155

Kelly, 745 N.E. 2d at 978; Valerie Yarashus, Massachusetts Personal Injury Law Sourcebook and

Citator (MCLE, Inc., 2012).

156

Id.

157

Id.

158

See generally Panella, supra note 133 (discussing the potential civil claims a Medical Examiner

faces).

159

Cal. Ins. Code §10350.10 (West 2012).

160

Id.

161

24-A M.R.S.A. § 2714.

162

22 V.I.C. § 864.

163

See N.J. Stat. Ann. § 17B:26-13 (2013) (“[p]hysical examinations and autopsy: The insurer at its own

expense shall have the right and opportunity to examine the person of the insured when and as

often as it may reasonably require during the pendency of a claim hereunder and to make an

autopsy in case of death where it is not forbidden by law”).

164

See Nev. Rev. Stat. § 617.380 (2011) (“1. [o]n the filing of a claim for compensation for death from

an occupational disease where in the opinion of the insurer it is necessary to ascertain accurately

and scientifically the cause of death, an autopsy may be ordered by the insurer”).

165

See P.R. Laws Ann. tit. 26, § 1614 (2013) (“physical exams and autopsies: The insurer will have the

right and the opportunity to examine, by his account, the person of the insured when and as often as

reasonably required while proceedings are pending a claim under this policy and to practice an

autopsy in case of death, when it is not prohibited by law”).

166

See Alaska Stat. § 21.51.130 (2012) (“[p]hysical Examinations and Autopsy: The insurer at its own

expense shall have the right and opportunity to examine the person of the insured when and as

often as it may reasonably require during the pendency of a claim hereunder and to make an

autopsy in case of death where it is not forbidden by law”).

167

See Idaho Code Ann. § 39-277 (2012) ([w]hen an attending physician or hospital has reported to the

department of health and welfare that Creutzfeldt-Jakob disease (CJD) or variant CJD is suspected

in relation to a person's death, the state epidemiologist, as designated pursuant to department rule,

shall cause to be performed an autopsy of the body”).

168

E. LeFevre, Annotation, Time for Making Autopsy or Demand Therefor Under An Insurance Policy,

30 A.L.R. Fed. 837 (1953).

169

“Physical Examinations and Autopsy” and “Legal Actions” Wording in Health Medical a Insurance

Policy, http://law.freeadvice.com/insurance_ law/health_insurance/health-insurance-autopsy-legal-

action.htm (last visited Apr. 21, 2012).

170

Tx. Ins. Code Ann. § 1201.216 (2011); S.C. Code Ann. 1976 § 38-71-340(10) (2012); Md. Code

Ann., Ins. § 15-216 (2012); S.D. Codifed Laws § 58-17-28 (2012).

171

Tx. Ins. Code Ann. § 1201.216 (2011).

172

See LeFevre, supra note 168, at § 1[b] (“[t]he propriety, necessity, and validity of these autopsy

provisions have been recognized by the courts. It has been said that the provision is reasonable and

quite necessary in accident insurance as affording protection against fraud”).

173

Lee Russ et. al., Post-Loss Rights and Duties; Adjustment of Loss, in 13 Couch on Insurance

§196:95 (3d ed. 2012).

174

Mut. Life Ins. Co. of N.Y. v. McCulloch, 31 F. Supp. 800, 801 (W. Va. 1939).

175

Id., at 802.

176

Id.

177

Id.

178

Id.

179

McCulloch, 31 F. Supp. at 802.

180

Id. at 802

181

Id.

182

Id. at 803.

183

McCulloch, 109 F.2d at 804-05.

184

230 So. 2d 166 (Fla. Dist. Ct. App. 1970).

185

Achor, 230 So. 2d at 167-68.

186

Id. at 167; see also LeFevre, supra note 168; 29A Am. Jur 2d Insurance § 1416 (2012).

187

Achor, 230 So. 2d at 167.

188

Id.

189

2012 WL 314090 (M.D. La. Feb. 1, 2012).

190

Arnett, 2012 WL 314090, at *1.

191

Id.

192

Id. at *4.

193

Id. at *1.

194

Id. at *3.

195

Id.

196

Arnett, 2012 WL 314090, at *4.

197

Id.

198

Id.

199

Arnett, 2012 WL 314090, at *5; cf. Mega Life & Health Ins. Co. v. Pieniozek, 516 F.3d 985 (11th Cir.

2008) (court found the word “autopsy” in an insurance policy ambiguous since it was unclear

whether a reasonable person applying for insurance would have understood the word to mean either

a full dissection or a post mortem examination).

200

McRae v. Booth, 938 So. 2d 432, 433 (Ala. Civ. App. 2006).

201

See generally Minn. Stat. Ann. § 390.11 (West 2012) (“stillbirths of 20 weeks or longer gestation

unattended by a physician” and “unexpected deaths of children” to be investigated, and the medical

examiner can determine whether an autopsy is needed for further investigation).

202

292 N.W. 2d 816 (1980).

203

Scarpaci v. Milwaukee Cty., 292 N.W.2d 816 (1980).

204

Id. at 672, 292 N.W.2d at 820.

205

Id. at 676, 292 N.W.2d at 822.

206

Id. at 677 n.13, 292 N.W.2d at 823.

207

See Scarpaci, 292 N.W.2d at 824 (if the medical examiner believes that death is not caused by a

circumstance under the statute, then he cannot conduct or order an autopsy).

208

Id.

209

292 N.W.2d at 832.

210

Id.; see also Grad v. Kaasa, 314 S.E.2d 755 (N.C. App. 1984), rev'd, S.E.2d 888 (N.C. 1984) (a

widow brought suit against the medical examiner for wrongful autopsy. The court found that since

the decision to perform the autopsy did not manifest a reckless indifference to the rights of others,

the medical examiner was not liable. Even if the autopsy was unnecessary, this fact is irrelevant in

determining whether the defendant acted recklessly).

211

McRae v. Booth, 938 So. 2d 432, 434 (Ala. Civ. App. 2006).

212

Rakow v. State, 854 N.Y.S. 2d 844, 846 (Ct. Cl. 2007).

213

Id. at 848.

214

Id. at 849.

215

Id.

216

Id.

217

Rakow, 854 N.Y.S. 2d at 850 (citing N.Y. Pub. Health § 4214 (McKinney 2012)).

218

Id. at 851.

219

Id. at 852; see generally 22A Am. Jur.2d Dead Bodies § 43 (2003) (a number of states statutorily

require “only one of the next of kin” to allow for an autopsy at common law but “the next of kin” have

the right to grant or deny authority for a private autopsy).;

220

See Coleman v. Sopher, 499 S.E.2d 592, 603 (W. Va. 1997) (“Consent to Autopsy” form was

ambiguous and interpreted to reflect the intent of the parties).

221

Id. at 596.

222

Id.

223

Id.

224

Id.

225

Coleman, 499 S.E.2d at 596.

226

Id. at 597.

227

Id.

228

Id. at 595.

229

Id. at 596.

230

Id.; but see Albrecht v. Treon, 889 N. E.2d 120, 129 (Ohio 2008) (ruling that the “next of kin” did not

have a viable cause of action because a brain was retained by the coroner as part of the post

mortem examination and noting “we are mindful of the right of a decedent's next of kin to attend to

the proper preparation and burial or cremation of the body. But nothing in the United States

Constitution, the Ohio Constitution, Ohio statutes, or common law establish a protected right in

autopsy specimens in Ohio.”)

231

Elizabeth Burton & Kim Collins, Religion and the Autopsy, Medscape,

http://emedicine.medscape.com/article/1705993-overview (last visited Apr. 27, 2012).

232

Id.

233

Id.

234

Id.

235

Id.

236

Burton & Collins, supra note 232.

237

Charlotte K. Goldberg, Choosing Life After Death: Respecting Religious Beliefs and Moral

Convictions in Near Death Decisions, 39 Syracuse L. Rev. 1197, 1199 (1988).

238

Id. at n. 194; see also Cal. Health & Safety Code § 7151.7 (West 1988).

239

Id. at n. 195; see e..g. Cal. Gov't Code § 27491.43(a)(2) (West 1985); N.J. Stat. Ann. § 52:17B-88.1

(West 1986); N.Y. Pub. Health Law § 4210-c(2)(b) (McKinney 1985).

240

Goldberg, supra note 238, at 1236.

241

Id.

242

Ohio Rev. Code Ann. § 313.131 (West 1990).

243

18 U.S.C.A. § 4045 (2012).

244

Kohn v. U.S., 591 F. Supp. 568 (E.D.N.Y. 1984).

245

Id.

246

Id.

247

Harris-Cunningham v. Med.l Exam'r of N.Y. Cnty., 261 A.D. 2d 285 (N.Y. App. Div. 1, 1999).

248

Id.