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Monday, January 28, 2008
Courts - More on "Ohio Court Debates Rights to Body Parts"
Updating this ILB entry from Jan. 23 about the case recently argued before the Ohio Supreme Court, Robert Barnes of the Washington Post reports today in a story headlined "Huge Lawsuit Could Change Handling of the Dead." Some quotes:
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. * * *
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. * * *
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.
Posted by Marcia Oddi on January 28, 2008 02:37 PM
Posted to Courts in general