During a science field trip to the Staten Island morgue in 2005, high school students saw a familiar name on a glass jar containing a brain. Jesse Shipley, a classmate’s brother, had died two months earlier in a car crash.
Multiple news sources report that Jesse’s parents didn’t know his brain had been retained after his autopsy. They got the brain back and held a second funeral. Then they sued the medical examiner and New York City for the emotional pain they had suffered and for violation of their “right of sepulcher” – the common-law right to claim a loved one’s body for burial.
Marvin Ben-Aron, the Shipleys’ attorney, said it was particularly troubling to the Shipleys that Jesse’s brain, which “embodies the essence of a human being,” was the organ retained.
The initial court ruling awarded the Shipleys $1 million. On appeal to a higher court, the award was reduced to $600,000. Last month, 10 years after Jesse’s death, the Court of Appeals in Albany reversed both earlier rulings and invalidated the award.
“At most, a medical examiner’s determination to return only the body without notice that organs and tissue samples are being retained is discretionary. Therefore, no tort liability can be imposed,” Judge Eugene Pigott Jr. wrote in the majority opinion.
According to the New York Law Journal, the court based its decision on existing public health law. Judge Pigott said the Legislature could rewrite the statute if it wanted to.
After the lower courts found the New York City Medical Examiner’s Office liable, the office started to notify families of organ retention. But Judge Pigott said notification policies raise many more legal questions: What type of notice is required and in what time frame? How should specimens be handed over to families? Is notification required for the near-universal retention of tissue samples or only for organs?
A further problem is that medical examiners that follow existing notification policies told the court that in many cases, families informed of organ retention say they’d rather not have known.
I’ve written about organ retention before. When legitimate interests conflict, perfect answers don’t exist. You simply can’t please everybody.
What I found most remarkable about the Shipley case is the misconception expressed in comments posted by readers of online stories about Jesse Shipley. Remarkable numbers of people think that if a medical examiner’s office is allowed to retain organs, it could sell them for transplantation.
“This screams black market for organs,” one reader wrote.
Organs for transplant come from “beating-heart cadavers” – bodies maintained on life support after a declaration of brain death. Their hearts are beating. Their lungs, livers and kidneys are functioning. It’s the maintenance of life support that makes organs safe for transplant.
Decomposition begins immediately after death. Degenerated organs obtained during an autopsy conducted hours after death can’t be returned to a functional state. Inserting such an organ into a living person would be fatal.
As a student, I learned a lot from autopsy organs that had, without consent, been retained as teaching tools. In this age of litigation, that’s a rare and dangerous practice.
Years ago, a particularly unusual organ or specimen was sometimes kept and displayed to colleagues as a sort of trophy. Nobody who values his or her career would do that now. Organs are still retained by medical examiners when further testing is required or when they’re seen as important trial evidence. They’re not souvenirs. They’re not for sale.
Dr. Carol J. Huser, a forensic pathologist, served as La Plata County coroner from 2003-12. Reach her at email@example.com. She now lives in Florida and Maryland.