City Averts Liability for Display of Teen’s Brain

     (CN) – New York City is not liable after high school students saw the brain of a recently killed classmate on a field trip to the local morgue, a state appeals court ruled Wednesday.
     Jesse Shipley was 17 when he died in a car accident on Staten Island in January 2005.
     During the ensuing autopsy, Richmond County medical examiner Dr. Stephen de Roux extracted Shipley’s brain, placed it in a jar of formalin fluid, labeled that jar with the boy’s name, and put it in a cabinet where he kept such specimens for a neuropathologist to examine at a later date.
     That March, Shipley’s sister learned from former classmates that they saw this jar during a field trip the high school took to the county morgue.
     Shipley’s parents sued the city and the medical examiner’s office for negligent infliction of emotional distress and violation of their “sepulcher” rights, in other words their right to immediate possession of the body of their decedent for preservation and burial.
     Eventually the case went to trial on the issue of whether the medical examiner had returned the body without telling the Shipley family that the brain was not present.
     A judge entered a directed verdict for the Shipleys on this point and awarded $1 million in damages. The appellate division affirmed the ruling, and the Shipleys agreed to a reduced award of $600,000.
     The city’s challenge to the New York Court of Appeals faced a delay amid judicial vacancies but finally ended Wednesday in a 5-2 reversal.
     For the majority, there was no sepulcher violation because such a cause of action involves “the act of depriving the next of kin of the body, and not the deprivation of organ or tissue samples within the body.”
     In requiring medical examiners to turn over “the remains of the body,” the New York Legislature makes no mention of the words “tissue, organ or part,” the 21-page opinion states.
     Yet that language is present in the laws against grave robbing and trafficking in body parts, the court emphasized.
     “Absent a duty to turn over organs and tissue samples, it cannot be said that the medical examiner has a legal duty to inform the next of kin that organs and tissue samples have been retained,” Judge Eugene Pigott wrote for the majority.
     The 23-page dissent by Judge Jenny Rivera calls the facts at issue “horrific.”
     “I disagree with the majority’s conclusion that a medical examiner has unfettered discretion to retain organs once they no longer serve any legitimate purpose, and also to withhold information from the next of kin that parts of the body are unavailable immediately for burial, or are never to be returned,” she wrote.
     The New York Post reported earlier this year that the city is still fighting for the right to burn brains as medical waste , rather than holding onto them for weeks to be returned to the families of the deceased.

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