Andre Shipley and his wife, Korisha, were already mourning the loss of their son Jesse when they were given an added injury by the New York city medical examiner when they learned that their son’s brain was on public display in a jar. The case is the latest controversy over the “right of sepulcher.”

Jesse, 17, died as a passenger in a car accident. He was a Port Richmond High School student. He was buried two months ago. Then their son’s former high school classmates visited the morgue where saw his brain sitting in a jar with Jesse’s name on it. The students told Jesse’s sister who still attended the school.

The medical examiner’s office has acknowledged that the brain was held for tests but they never informed the parents. The parents had to go to court to get an order to get possession of their son’s brain.

They are now suing and an appellate court has ruled that it can proceed. The court ruled that the case raises the long-standing common law “right of sepulchre” which protects a family’s “absolute right to the immediate possession of a decedent’s body for preservation and burial.”

The Court recognized that the medical examiner’s need to do autopsy but found that such authority does not bar this lawsuit:

while the medical examiner has the statutory authority to exercise his or her discretion to perform an autopsy in certain cases, and to remove and retain bodily organs for further examination and testing in connection therewith, he or she also has the mandated obligation, pursuant to Public Health Law § 4215(1) and the next of kin’s right of sepulcher, to turn over the decedent’s remains to the next of kin for preservation and proper burial once the legitimate purposes for the retention of those remains have been fulfilled. This latter duty is not only ministerial in nature (see Tango v Tulevech, 61 NY2d 34, 40, 459 N.E.2d 182, 471 N.Y.S.2d 73), but is clearly for the benefit of, and is owed directly to, the next of kin. Furthermore, it may be satisfied in the present context by the simple act of notifying the next of kin that, while the body is available for burial, one or more organs have been removed for further examination. In this manner, the next of kin may make an informed decision regarding whether to bury the body promptly without the missing organs and then either accept the organs at a later date or authorize the medical examiner to dispose of them, or alternatively, to wait until such time as the organs and body can be returned to them together, in as complete a condition as is reasonably possible, for burial or other appropriate disposition by the next of kin. HN9This requirement, hardly onerous in nature, strikes an appropriate balance between the fulfillment of the legitimate scientific and investigative duties of the Medical Examiner’s Office and the recognition of the long-established rights of next of kin to receive and provide final repose to the remains of their loved ones.

In an earlier opinion in Melfi v. Mount Sinai Hospital, 877 N.Y.S.2d 300 (2009), the New York court cited Genesis 50:26 (describing Joseph’s burial); Deuteronomy 34:6 (describing Moses’ burial) on the tradition of burials and even cited Moschion, the Third Century Greek poet on the role of burial to end a period of cannibalism:

“The earth, once barren, began to be ploughed by yoked oxen, towering cities arose, men built sheltering homes and turned their lives from savage ways to civilized. From this time they made it a law to bury the dead or give unburied bodies their portion of dust, leaving no visible reminder of their former imperious feasts.” W.K.C. Guthrie, The Sophists, at 82 [Cambridge Univ. Press 1971], W.B. Tyrrell and F.S. Brown, Athenian Myths and Institutions, at 81, [Oxford Univ. Press 1991].

The court traced the role of burial through Sophocles and Grotius. Here is how the Court ultimately defined the right:

we find that HN18for a right of sepulcher claim to accrue 1) there must be interference with the next of kin’s immediate possession of decedent’s body and 2) the interference has caused mental anguish, which is generally presumed. Interference can arise either by unauthorized autopsy (Darcy, 202 N.Y. at 262-263), or by disposing of the remains inadvertently (Finley, 220 N.Y. at 257-258; Correa v. Maimonides Med. Ctr., 165 Misc. 2d 614, 629 N.Y.S.2d 673 (Sup. Ct., Kings County 1995)), or, as in this case, by failure to notify next of kin of the death. The next of kin’s mental anguish in these situations is then generally presumed but, in any event, cannot be felt until the next of kin is aware of the interference with his/her right of possession of the loved one’s body for burial. Right of sepulcher cases, then, are not akin to “foreign object” cases, as Supreme Court observed here, where the statute of limitations is tolled rather than accruing at the date of the surgeon’s negligent act. In those cases, it is indisputable that actual injury occurs when the foreign object is left inside the body but the statute of limitations is tolled until plaintiff discovers the existence of the foreign object.

These cases raise issues of negligence, negligent infliction of emotional distress and abuse of a corpse. However, there is also the question of the school friends and whether they can also sue for emotional distress. Courts often limit recovery in negligent infliction cases involving third parties (to those with physical injuries or close family members).

We previously saw a case of high school students who were confronted with an autopsy of a former classmate.

This is a case where the city created even worst precedent by litigating the issue. This would appear a case that cries out for settlement. The lack of notice to the parents makes this a relatively easy issue for a jury, which is not likely to take well to these facts.

Source: CBS.

Jonathan Turley