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[SIZE=+2]Huge Lawsuit Could Change Handling of the Dead[/SIZE]
[SIZE=-1]By Robert Barnes
Washington Post Staff Writer
Monday, January 28, 2008; A05
[/SIZE]
It was years after Mark and Diane Albrecht laid their son Christopher to rest that they discovered they had not buried all of him.
His brain had been removed for tests by an Ohio county coroner trying to determine why the seemingly healthy 30-year-old man had died. It was never returned.
The Albrechts' discovery that they had buried their son without his brain has led to a federal class-action suit that could cost local governments millions of dollars, force changes in the way medical examiners perform their jobs and establish new rights for the next of kin.
The suit argues that the next of kin, not the state, should make decisions on how to dispose of organs no longer needed for testing, and that denial of such a right violates the Constitution's promise of due process. The federal lawsuit names 87 of Ohio's 88 counties; the other, Hamilton County, which encompasses Cincinnati, has already settled with families for $6 million.
Beyond that, the case has presented two separate courts with existential questions about death and burial rites, religion and grief, and the interests that loved ones have in the remains of the departed.
The social commentary comes from likely sources, such as the Catholic League, and unlikely ones, such as the National Association of Medical Examiners.
"Human beings relate to the personhood and soul of other living human beings, but these qualities are extinguished at death," said the medical examiners' brief. "The real family interest is in the 'soul' of the deceased, if it continues in an afterlife, or in the memory of the 'soul', rather than to the dead carcass."
The "dead carcass" line has not played well with those who urge the courts to find for the families.
Their supporters have drawn on Walt Whitman ("I Sing the Body Electric"), "The Iliad," ancient burial traditions, and the more modern searches for the remains of soldiers killed in Vietnam or the recovery of bits of the victims of the Sept. 11, 2001, terrorist attacks.
The Catholic League said in its court brief that respect for all parts of the dead "motivates us to spend hundreds of thousands of dollars to search disaster sites, fires, and plane crashes, not only to recover intact bodies but individual parts."
The Albrechts reached a more concise conclusion: "The right to disposition of the loved one's dead body includes all of its parts."
The couple, who have declined media interview requests, learned of their son's missing brain from a lawyer investigating other cases involving the Hamilton County coroner. They had not objected to an autopsy to learn the cause of their son's death after his car swerved into a retention pond in December 2001, and do not contend that the coroner improperly conducted the autopsy.
But they did not know what medical examiners say is common: that brain examinations can take time, because the gelatinous matter must sometimes be fixed in a solution for two weeks before a sample can be taken. Remains returned to the family often do not contain all of the organs.
So the Albrechts buried their son, and the coroner later disposed of his brain after determining that Christopher had suffered a seizure, lost control of the car and drowned in the pond.
U.S. District Judge Susan J. Dlott said last spring that before she could rule on whether the class-action lawsuit could go forward, she wanted the Ohio Supreme Court to determine whether the next of kin have a "protected right" under Ohio law to "the decedent's tissues, organs, blood or other body parts that have been removed and retained" by a coroner.
The issue moved last week to the state court's seven justices, who seemed equally skeptical of arguments on both sides.
Lawyer Mark Landes, representing the counties and their coroners, said a broad requirement on coroners, specifying notification of families and meticulous retention of often severely damaged body parts, would make it impossible to do their work.
He said that some tests take time, longer than families want to wait for burial or cremation, and that some next of kin want to be spared the details.
But Chief Justice Thomas J. Moyer asked whether that was a decision for the family to make. "Why shouldn't it be their choice to wait?" he said.
The justices also seemed wary of what they might be opening up. Moyer wondered how the court could draw a "bright line" defining what coroners may discard and what must be returned to the body.
John H. Metz, who represents the Albrechts, said that families have no unrealistic expectation that every tissue sample or blood specimen will be returned to the body, but that something such as a brain is different.
The coroner had no more right to dispose of that, Metz argues, than to keep Christopher's "heart, head, leg or any other body part."
It is because of Metz, who acknowledges he has been called the "dead bodies lawyer," that Ohio is in the forefront of the issue. In 1991, he successfully represented a woman who discovered that the coroner had harvested her husband's corneas for transplantation without her permission.
The U.S. Court of Appeals for the 6th Circuit held that the woman had a "legitimate claim of entitlement" to her deceased husband's body, protected by the due process clause of the 14th Amendment.
After the successful suit against Hamilton County involving brains, the Ohio General Assembly stepped in.
It passed a law in 2006 stating that "retained tissues, organs, blood, other bodily fluids, gases, or any other specimens from an autopsy are medical waste," to be disposed of in accordance with state and federal law.
That law settles the issue, Landes argued, and shows that the current suit is not about preventing future wrongdoing but "collecting money for people who don't even know" the past practices until contacted by lawyers.
If settlements followed the pattern from Hamilton County, he said, the cost to local governments could be about $90 million.
Metz said that complaining of the possible cost is always the defense of the wrongdoer.
[SIZE=-1]By Robert Barnes
Washington Post Staff Writer
Monday, January 28, 2008; A05
[/SIZE]
It was years after Mark and Diane Albrecht laid their son Christopher to rest that they discovered they had not buried all of him.
His brain had been removed for tests by an Ohio county coroner trying to determine why the seemingly healthy 30-year-old man had died. It was never returned.
The Albrechts' discovery that they had buried their son without his brain has led to a federal class-action suit that could cost local governments millions of dollars, force changes in the way medical examiners perform their jobs and establish new rights for the next of kin.
The suit argues that the next of kin, not the state, should make decisions on how to dispose of organs no longer needed for testing, and that denial of such a right violates the Constitution's promise of due process. The federal lawsuit names 87 of Ohio's 88 counties; the other, Hamilton County, which encompasses Cincinnati, has already settled with families for $6 million.
Beyond that, the case has presented two separate courts with existential questions about death and burial rites, religion and grief, and the interests that loved ones have in the remains of the departed.
The social commentary comes from likely sources, such as the Catholic League, and unlikely ones, such as the National Association of Medical Examiners.
"Human beings relate to the personhood and soul of other living human beings, but these qualities are extinguished at death," said the medical examiners' brief. "The real family interest is in the 'soul' of the deceased, if it continues in an afterlife, or in the memory of the 'soul', rather than to the dead carcass."
The "dead carcass" line has not played well with those who urge the courts to find for the families.
Their supporters have drawn on Walt Whitman ("I Sing the Body Electric"), "The Iliad," ancient burial traditions, and the more modern searches for the remains of soldiers killed in Vietnam or the recovery of bits of the victims of the Sept. 11, 2001, terrorist attacks.
The Catholic League said in its court brief that respect for all parts of the dead "motivates us to spend hundreds of thousands of dollars to search disaster sites, fires, and plane crashes, not only to recover intact bodies but individual parts."
The Albrechts reached a more concise conclusion: "The right to disposition of the loved one's dead body includes all of its parts."
The couple, who have declined media interview requests, learned of their son's missing brain from a lawyer investigating other cases involving the Hamilton County coroner. They had not objected to an autopsy to learn the cause of their son's death after his car swerved into a retention pond in December 2001, and do not contend that the coroner improperly conducted the autopsy.
But they did not know what medical examiners say is common: that brain examinations can take time, because the gelatinous matter must sometimes be fixed in a solution for two weeks before a sample can be taken. Remains returned to the family often do not contain all of the organs.
So the Albrechts buried their son, and the coroner later disposed of his brain after determining that Christopher had suffered a seizure, lost control of the car and drowned in the pond.
U.S. District Judge Susan J. Dlott said last spring that before she could rule on whether the class-action lawsuit could go forward, she wanted the Ohio Supreme Court to determine whether the next of kin have a "protected right" under Ohio law to "the decedent's tissues, organs, blood or other body parts that have been removed and retained" by a coroner.
The issue moved last week to the state court's seven justices, who seemed equally skeptical of arguments on both sides.
Lawyer Mark Landes, representing the counties and their coroners, said a broad requirement on coroners, specifying notification of families and meticulous retention of often severely damaged body parts, would make it impossible to do their work.
He said that some tests take time, longer than families want to wait for burial or cremation, and that some next of kin want to be spared the details.
But Chief Justice Thomas J. Moyer asked whether that was a decision for the family to make. "Why shouldn't it be their choice to wait?" he said.
The justices also seemed wary of what they might be opening up. Moyer wondered how the court could draw a "bright line" defining what coroners may discard and what must be returned to the body.
John H. Metz, who represents the Albrechts, said that families have no unrealistic expectation that every tissue sample or blood specimen will be returned to the body, but that something such as a brain is different.
The coroner had no more right to dispose of that, Metz argues, than to keep Christopher's "heart, head, leg or any other body part."
It is because of Metz, who acknowledges he has been called the "dead bodies lawyer," that Ohio is in the forefront of the issue. In 1991, he successfully represented a woman who discovered that the coroner had harvested her husband's corneas for transplantation without her permission.
The U.S. Court of Appeals for the 6th Circuit held that the woman had a "legitimate claim of entitlement" to her deceased husband's body, protected by the due process clause of the 14th Amendment.
After the successful suit against Hamilton County involving brains, the Ohio General Assembly stepped in.
It passed a law in 2006 stating that "retained tissues, organs, blood, other bodily fluids, gases, or any other specimens from an autopsy are medical waste," to be disposed of in accordance with state and federal law.
That law settles the issue, Landes argued, and shows that the current suit is not about preventing future wrongdoing but "collecting money for people who don't even know" the past practices until contacted by lawyers.
If settlements followed the pattern from Hamilton County, he said, the cost to local governments could be about $90 million.
Metz said that complaining of the possible cost is always the defense of the wrongdoer.
