In what will most certainly end up a torts case, Christ Hospital in Jersey City, New Jersey has reportedly admitted that it threw out the body of a baby in the trash. The still grieving mother, Kalynn Moore, 26, was informed that they cannot locate the body of her son Bashere Davon Moyd Jr., as police search garbage dumps in New Jersey and Pennsylvania. There is now concern that the baby may have been incinerated in Kentucky.
The baby had gone eight months in the womb when the delivery occurred. After the boy died, Moore’s cousin Nicia Royster went with a nurse to place the corpse into the hospital’s morgue.
There is also a dispute as to whether the baby was born alive. The hospital insists that the baby was stillborn and says that it is praying for the family. It may have to do a bit more than pray. The common law has long placed the mishandling of corpses in a special category — placing greater liability on hospital, funeral homes, transportation companies and other businesses that handle the dead. These cases regularly arise, here and here and here. A typical case, as here involves the lack of refrigeration or other negligence.
Under New Jersey law, if a baby is born stillborn, it is not consider human — making a considerable difference in terms of tort liability.
The dispute of the baby’s status at birth makes the disappearance of the body even more problematic. If there was malpractice, the body would the key piece of evidence after an autopsy. Without the body, the family will be left with conjecture through the use of res ipsa loquitur (where a jury is allowed to find that an injury would not normally occur but for negligence). How a court will handle such a dispute will be interesting. Often when one party destroys evidence, the court will order certain inferences be given to the other party. However, it is doubtful that the court would order an inference of malpractice or key elements unless the family can show an intentional act of destruction. They would still have a strong case under mishandling but wrongful death generally bring higher damages. There is a possibility if punitive damages, however, in this case.