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2007-0507. Albrecht v. Treon, Slip Opinion No. 2008-Ohio-2617.
On Order from the United States District Court for the Southern District of Ohio, Western Division, Certifying Question of State Law, No. 1:06CV274. Certified question answered. See opinion.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Moyer, C.J., concurs in answer only.
Pfeifer, J., dissents.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-2617.pdf
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(June 5, 2008) The Supreme Court of Ohio ruled today that the next of kin of a deceased person upon whom an autopsy has been performed do not have a protected right under Ohio law to recover and dispose of the decedent’s tissues, organs, blood or other body parts that have been removed and retained by a coroner for forensic examination and testing. The Court’s 6-1 decision was authored by Justice Evelyn Lundberg Stratton.
The case involves a class action lawsuit that has been filed in federal court against coroners and/or medical examiners and county commissioners in 87 of Ohio’s 88 counties. The original suit underlying the class action was filed by Mark and Diane Albrecht against the coroner of Clermont County, Ohio, Dr. Brian Treon, the Board of County Commissioners and the commissioners individually. After the death and autopsy examination of the Albrecht’s son, Christopher Albrecht, in accordance with proper forensic practice and statutory obligations, the Hamilton County Coroner retained their son’s brain for further examination to determine the cause of death. Upon review of the autopsy report, the Albrechts discovered that their son’s brain had been retained by the coroner’s office when it released the body to them and had been disposed of after completion of the autopsy.
The parents sued for damages, arguing that as their son’s next of kin, their constitutional right to due process of law was violated by the coroner’s failure to notify them of his intent to remove and retain their son’s brain for forensic testing, and by the coroner’s subsequent disposal of the brain without notifying them or giving them an opportunity to decide whether they wanted to receive and make disposition of the organ along with the rest of their son’s body. The Albrecht’s suit was subsequently joined by the next of kin of other decedents whose organs or other tissue were removed during autopsies and later disposed of by coroners without notice to or consent of the decedents’ survivors.
Before reviewing the federal claims asserted by the plaintiffs, the U.S. District Court for the Southern District of Ohio asked the Supreme Court of Ohio to answer the threshold question of whether, under Ohio law, after an autopsy has been performed the next of kin of decedents have a “protected right” to recover tissues, organs, blood, and other body parts that have been removed and retained by the coroner for testing.
In today’s decision, the Court majority held that while state statutes and prior Ohio court decisions recognize an entitlement of surviving family members to receive the body of a decedent for burial or other disposition after an autopsy has been completed, that interest does not equate to a protected “property” or “quasi-property” right to tissue that a coroner has removed and retained for post-autopsy testing that the coroner believes to be necessary.
Writing for the Court, Justice Stratton noted that while there is no Ohio case law addressing the precise legal question posed by the federal court, state court decisions dating back to 1893 have held that a decedent’s body “is not property.” She also pointed to more recent decisions of Ohio’s 8th and 2nd District Courts of Appeals, Carney v. Knollwood Cemetery Assn. (1986) and Everman v. Davis (1989), in which those courts rejected arguments that the surviving custodian of a decedent had a property-like interest in the remains of the decedent.
Justice Stratton also pointed out that in 2006, after the events underlying the Albrecht’s suit took place, “(T)he Ohio General Assembly enacted R.C. 313.123, which defines the term ‘autopsy’ for purposes of R.C. Chapter 313 and provides that ‘[e]xcept as otherwise provided in division (B)(2) of this section, retained tissues, organs, blood, other bodily fluids, gases, or any other specimens from an autopsy are medical waste and shall be disposed of in accordance with applicable federal and state laws, including any protocol rules adopted under section 313.122 of the Revised Code.’ ... (Emphasis added.)”
While another section of the same statute requires coroners to delay an autopsy by 48 hours to allow a court challenge in cases where the coroner is aware that an autopsy is ‘contrary to the deceased person’s religious beliefs,’ Justice Stratton noted that: “(T)his rule does not apply to cases involving aggravated murder, suspected aggravated murder, murder, suspected murder, manslaughter offenses or suspected manslaughter offenses. R.C. 313.131(F)(1). Also, the coroner has no obligation to obtain consent from the next of kin of a decedent to perform an autopsy. R.C. 2108.52. Further, the coroner’s right to perform an autopsy is paramount to the ability of the decedent or next of kin to make a gift of a body part. R.C. 313.13(A). Thus, while R.C. 313.14 gives next of kin a right to disposition of the body, that right does not arise until after the coroner has performed his duties, and does not include forensic specimens that were retained by a coroner for forensic examination and testing.”
Justice Stratton concluded: “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. R.C. 313.14 simply clarifies whom the coroner should contact to make funeral arrangements. The interest that Ohio statutes at issue here give next of kin in an autopsied decedent’s body is to inter or cremate the body after the autopsy has been performed. Our decision today only addresses autopsy specimens, and not body parts or fluids that the coroner or the examining individual does not consider necessary to be examined, tested, or retained in the autopsy. If the General Assembly believes that next of kin should have a right to autopsy specimens when the coroner’s office is through with them, it should provide that right by statute. The issues of whether notice is required, what notice is required, and whether and under what circumstances tissue and organs can be removed and retained during the course of an autopsy, are issues for the legislature, not the courts.”
Justice Stratton’s opinion was joined by Justices Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Thomas J. Moyer concurred in the Court’s answer to the certified question of law, but did not join the majority opinion.
Justice Paul E. Pfeifer entered a dissent stating that in his view, prior to the 2006 enactment of R.C. 313.123 giving coroners the right to dispose of autopsy specimens, Ohio statutes and case law gave next of kin a protected right in a deceased family member’s body. In support of that view, Justice Pfeifer cited a number of statutory provisions including R.C. 313.15, which he said limits the right of next of kin to dispose of a decedent’s body only as to the time they must wait to exercise that right while an autopsy is completed. He also cited Ohio’s Anatomical Gift Act, which expressly grants family members full authority to donate a decedent’s body parts to others unless the decedent expressly prohibited such donation, or to prohibit any anatomical gift from being made by a less closely related relative.
Justice Pfeifer also disputed the majority’s interpretation of prior state court decisions addressing the rights of next of kin to custody and control of a decedent’s body. After reviewing several of the cases cited by the majority he concluded: “All of the cited cases demonstrate that Ohio courts have long and consistently held that a deceased’s family members have a right protected by law in the proper disposition of the deceased’s body. It is a possessory right, and prevents others from damaging the body. There are no cases holding to the contrary.”
Contacts
Patrick J. Perotti, 440.352.3391, for
Patrick J. Perotti, 440.352.3391.
H. Elizabeth Mason, 513.732.7585, for Clermont County Coroner Brian Treon.