Albrecht v. Treon
| Citation | 2008 Ohio 2617,889 N.E.2d 120,118 Ohio St.3d 348 |
| Decision Date | 05 June 2008 |
| Docket Number | No. 2007-0507.,2007-0507. |
| Parties | ALBRECHT et al. v. TREON et al. |
| Court | Ohio Supreme Court |
Benesch, Friedlander, Coplan & Aronoff, L.L.P., Mark D. Tucker, and C. David Paragas, for amici curiae Ohio State Coroners Association and Ohio State Medical Association, in support of petitioners.
Nancy Hardin Rogers, Attorney General, and William P. Marshall, Solicitor General, for amicus curiae state of Ohio, in support of petitioners.
Ron O'Brien, Franklin County Prosecuting Attorney, and Nick A. Soulas Jr., A. Paul Thies, and Patrick J. Piccininni, Assistant Prosecuting Attorneys, for amici curiae Franklin County Board of Commissioners and Franklin County Coroner, in support of petitioners.
Dworken & Bernstein Co., L.P.A., Patrick J. Perotti, and Nicole T. Fiorelli, Painesville; and John H. Metz, for amicus curiae Monreal Funeral Home, in support of respondents.
Dworken & Bernstein Co., L.P.A., Patrick J. Perotti, and Nicole T. Fiorelli, Painesville; and John H. Metz, for amici curiae the Catholic League and Brunner Funeral Homes, in support of respondents.
{¶ 1} This case involves the balancing of delicate issues involving a family's right to properly bury their deceased loved one in a condition that is as complete as possible against the state's right to conduct an autopsy where appropriate in a thorough and timely manner. Today we must determine whether the next of kin of a decedent upon whom an autopsy has been performed have a protected right under Ohio law in the decedent's tissues, organs, blood, or other body parts that have been removed and retained by the coroner for forensic examination and testing.
{¶ 2} The respondents, Mark and Diane Albrecht, argue that the coroner should be required to give notice to the deceased's next of kin1 of the coroner's intent to retain certain forensic specimens for several weeks to complete the autopsy, and allow the next of kin to decide whether they want to receive the specimens when the coroner is through with them. This case could have implications far beyond simply the parties involved, as is evidenced by the number of amicus briefs that have been filed, including briefs by the National Association of Medical Examiners, the County Commissioners' Association of Ohio, the Buckeye State Sheriffs' Association, the Ohio Association of Chiefs of Police, the Ohio Prosecuting Attorneys Association, the Ohio Society of Pathologists, the Ohio State Coroners Association, the Ohio State Medical Association, the Ohio Attorney General's Office, 65 counties that are affected by this ruling, and two funeral homes. In oral argument it was argued that our answer may also affect other aspects of the medical profession, such as when surgeons remove organs and body tissue during surgery. However, many of the arguments raised by the parties and amici relate to public-policy issues, not legal issues.
{¶ 3} Coroners have conducted autopsies in Ohio for several decades. Autopsies serve an important public function relating to health, science, and criminal investigation. However, we must take the law of Ohio as we find it and leave the crafting of new solutions to the General Assembly. Courts are not the proper forum for regulating the practices, standards customs, policies, and procedures of autopsies in Ohio, as long as they pass constitutional muster. Therefore, we must look to the law to determine whether the next of kin have a protected right in the autopsy specimens of their deceased after an autopsy is complete.
{¶ 4} Respondents initiated the underlying lawsuit against the coroner of Clermont County, Ohio, Dr. Brian Treon, the Board of County Commissioners, and the commissioners individually. After the death of the Albrecht's son, Christopher Albrecht, in accordance with proper forensic practice and statutory obligations, the Hamilton County Coroner retained their son's brain for further examination to determine the cause of death. Upon review of the autopsy report, the Albrechts discovered that their son's brain had been retained by the coroner's office when it released the body to them and had been disposed of after completion of the autopsy, thereby prompting them to file the underlying cause of action for damages.
{¶ 5} The underlying case was filed in the United States District Court for the Southern District of Ohio and is now a putative class-action suit against all county coroners and/or medical examiners in the state of Ohio who, prior to a recent change in the law, had removed, retained, and disposed of body parts without prior notice to next of kin, and the county commissioners of those counties. Eighty-seven counties (all Ohio counties except Hamilton, which has already settled a similar suit) are implicated in the suit.
{¶ 6} On March 16, 2007, Judge Susan J. Dlott of the United States District Court for the Southern District of Ohio, Western Division, certified a question of state law for review to this court pursuant to S.Ct.Prac.R. XVIII. On June 11, 2007, this court agreed to answer the following question: "Whether the next of kin of a decedent, upon whom an autopsy has been performed, have a protected right under Ohio law in the decedent's tissues, organs, blood or other body parts that have been removed and retained by the coroner for forensic examination and testing."
{¶ 7} Respondents do not assert that they did not receive the body of their son for burial, nor do they contend that petitioners mishandled or in any way abused the body. They allege, instead, that once the autopsy was completed, they should have been given the opportunity to retrieve the brain for burial. Respondents argue that petitioners' failure to give them that opportunity violated their due-process rights.
{¶ 8} For the following reasons, we answer the certified question in the negative and hold that the next of kin of a decedent upon whom an autopsy has been performed do not have a protected right under Ohio law in the decedent's tissues, organs, blood, or other body parts that have been removed and retained by the coroner for forensic examination and testing.
{¶ 9} An autopsy includes, by definition, the removal and sometimes the retention of specimens from the human body:
{¶ 10} "`[A]utopsy' means the external and internal examination of the body of a deceased person, including, but not limited to, gross visual inspection and dissection of the body and its internal organs, photographic or narrative documentation of findings, microscopic, radiological, toxicological, chemical, or other laboratory analyses performed in the discretion of the examining individual upon tissues, organs, blood, other bodily fluids, gases, or any other specimens and the retention for diagnostic and documentary purposes of tissues organs, blood, other bodily fluids, gases, or any other specimens as the examining individual considers necessary to establish and defend against challenges to the cause and manner of death of the deceased person." (Emphasis added.) R.C. 313. 123(A)(1).
{¶ 11} The brain is a common site of diseases that are responsible for death. Sheaff, Michael T. & Hopster, Deborah J., Post Mortem Technique Handbook (2d Ed.2005) 282. Also, injuries to and abnormalities of the brain, such as subdural hematoma (often caused by the head's hitting a hard surface), inflammation of the brain, stroke, and tumors, may not be obvious without dissecting the brain. Wagner, Scott A., The Color Atlas of the Autopsy (2004) 203. Therefore, all autopsies performed under a coroner's jurisdiction require the examination of the brain. Id.
{¶ 12} During an autopsy, after the brain is removed from the skull, the medical professional uses his or her discretion in determining whether to dissect the brain in its fresh state (without soaking it in any solution to promote hardening) or in a fixed state (after it has soaked in a hardening solution). Post Mortem Technique Handbook 285.
{¶ 13} Fixation of a brain is accomplished by suspending the brain upside down in a large container of ten percent formal saline (formalin) for at least four to six weeks. Post Mortem Technique Handbook 285. Although the dissection of fixed and fresh brains are identical, fixation of the brain prior to dissection provides for a superior neuropathological examination. Id. Moreover, in cases in which there have been contusions or other injuries to the head (such as falling on a hard surface), inflammation (meningitis), fractures, or stroke, in cases in which there is reason to believe there are unexpected tumors or old injuries, or in cases involving sudden unexpected deaths of children, fixation of the brain prior to dissection provides a far...
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