Leno v. St. Joseph Hospital

• Decision Date: 25 September 1973
• Docket Number: No. 45362,45362
• Citation: 302 N.E.2d 58,55 Ill.2d 114
• Parties: Sam LENO et al., Appellees, v. ST. JOSEPH HOSPITAL, Appellant.
• Court: Illinois Supreme Court

Page 58

302 N.E.2d 58

55 Ill.2d 114

Sam LENO et al., Appellees, v. ST. JOSEPH HOSPITAL, Appellant.

No. 45362.

Supreme Court of Illinois.

Sept. 25, 1973.

Baker & McKenzie, Chicago (Michel A. Coccia, Francis D. Morrissey, John W. Dondanville, and Harry L. Kinser, Chicago, of counsel), for appellant.

Horwitz, Anesi, Ozmon & Associates, Ltd., Chicago, (Nat. P. Ozmon and Timothy Michael O'Brien, Chicago, of counsel), for appellees.

GOLDENHERSH, Justice:

Defendant, St. Joseph Hospital, appeals directly to this court (Rule 302(a), Ill.Rev.Stat.1971, c. 110A, § 302(a)) from the judgment of the circuit court of Cook County which held unconstitutional 'An Act in relation to autopsy of dead bodies' (Ill.Rev.Stat.1971, ch. 91, pars. 18.11 through 18.15) and awarded damages to plaintiff Sam Leno in the amount of $1,000.

Plaintiffs Sam Leno and Ralph Leno filed this action in the circuit court of Cook County, alleging that defendant, without proper authorization, had performed an autopsy on the body of their brother, Peter Leno, who had been confined to the hospital for several weeks prior to his death. The record shows that Peter Leno was survived by a wife who 'was incapacitated and in a nursing home' but the parties make no issue of her status or rights. In its answer defendant stated that the autopsy was authorized, in writing, by plaintiff Ralph Leno. After a bench trial, the court found that Ralph Leno had knowingly consented to the autopsy; that Sam Leno had no notice that an autopsy was to be performed and had not consented to its being done; that neither plaintiff had sustained any physical or pecuniary loss, but that both had suffered emotionally and mentally. Holding the statute unconstitutional, the court found that Ralph Leno's consent did not bind Sam Leno, and awarded Sam Leno damages in the amount of $1,000.

Defendant, as grounds for reversal, contends that 'rights to a dead body exist only as a matter of legislative grace and may therefore be properly regulated by the legislature.' It argues that 'Public policy favoring the performance of autopsies for medical investigation is so strong that even if rights to a dead body did exist, they could be statutorily regulated or restricted without violating the Illinois or United States Constitutions.'

Although the parties have briefed and argued several grounds upon which plaintiffs contend the statute is invalid, the only questions presented in this appeal are whether the Autopsy Act is unconstitutional because it permits one 'surviving relative' to authorize an autopsy, and for the reason that it does not require notification of, and authorization by, all the 'surviving relatives.' In support of their position plaintiffs argue 'that the case law in Illinois * * * establishes the right to bury decently, and the auxiliary right to be free from tortious interference with that right, as fundamental rights, liberties or species of 'property' to be afforded the protection of due process of law. Plaintiffs' position in this regard is very simple: it is fundamentally unfair to deprive a person of a substantial right without some reasonable provision of notice.'

Section 1 of the Act (ch. 91, par. 18.11(c)) defines 'surviving relative' as 'the spouse, an adult child, the parent, or an adult brother or sister of the decedent.' Section 2 states that:

'Any physician may perform an autopsy upon the body of a decedent; provided,

a. he has a written authorization from the decedent to do so; or

b. a written authorization from a surviving relative who has the right to determine the method for disposing of the body or a next of kin or other person who has such right;

d. where 2 or more persons have equal right to determine the method for disposing of the body, the authorization of only one such person shall be necessary, unless, before the autopsy is performed, any others having such equal right shall object in writing or, if not physically present in the community where the autopsy is to be performed, by telephonic or telegraphic communication to the physician by whom the autopsy is to be performed, in which event, the authorization shall be deemed insufficient.'

The principle is firmly established that while in the ordinary sense, there is no property right in a dead body, a right of possession of a decedent's remains devolves upon the next of kin in order to make appropriate disposition thereof whether by burial or otherwise. (See People v. Harvey, 286 Ill. 593, 122 N.E. 138; Palenzke v. Bruning, 98 Ill.App. 644; Mensinger v. O'Hara, 189 Ill.App. 48.) There appears to be no question of the right, under the police power, to perform an official autopsy on the body of a person who dies under suspicious circumstances (Ill.Rev.Stat.1971, ch. 31, par. 10.2), and the right of the next of kin to grant or deny authority for a private or unofficial autopsy is equally clear. Annot., Liability for Performing an Autopsy, 82 A.L.R.2d 955 (1962); Waltz, Legal Liability for Unauthorized Autopsies and Related Procedures, 16 J.For.Sci. 1 (1971); The Private Autopsy: Problems of Consent, 41 Denver L.J. 239 (1964); Holder, Unauthorized Autopsies, 214 J.A.M.A. 967 (1970); Groll and Kerwin, The Uniform Anatomical Gift Act: Is the Right to a Decent Burial Obsolete?, 2 Loyola U.L.J. 275 (1971).

The great majority of autopsies are of the nonofficial type and 'in the hospital practice of pathology, the problem of proper authority to perform a private autopsy on the body of a deceased patient arises regularly.' (41 Denver L.J. 239.) Many of the States have enacted statutes which provide, either explicitly or implicitly, that a nonofficial autopsy may be performed upon the authorization of only one of the next of kin (explicit: see, E.g., Arkansas, Ark.Stat.Ann. sec. 82--406 (Repl. Vol. 1960), Colorado, Colo.Rev.Stat.Ann. sec. 91--1--33 (1964), Connecticut, Conn.Gen.Stat.Ann. sec. 19--143 (Supp.1969), Delaware, Del.Code Ann., tit. 24, sec. 1777, tit. 13, sec. 707 (Supp.1970), Florida, Fla.Stat.Ann. sec. 872.04 (Supp.1971), Georgia, Ga.Code Ann. sec. 21--206 (Recomp. Vol. 1965), Hawaii, HRS tit. 25, sec. 453.15 (1968), Idaho, Idaho Code Ann. sec. 54--1817 (Supp.1969), Indiana, Ind.Ann.Stat. secs. 35--4401, 35--4406 (Supp.1971), Kansas, Kan.Stat.Ann. sec. 65--2893 (Supp.1970), Kentucky, Ky.Rev.Stat.Ann. sec. 72.070 (1969), Maryland, Md.Code Ann. art. 43, sec. 131 (1971), Michigan, Mich.Stat.Ann. sec. 14.524 (Rev.Vol.1969), M.C.L.A. § 328.151, Mississippi, Miss.Code Ann. 7158--08 (Supp.1971), Missour, Mo.Ann.Stat. sec. 194.115 (1962), New Jersey, N.J.Stat.Ann. sec. 26:6--50 (1964), Ohio, Ohio Rev.Code Ann. secs. 2108.50 to 2108.52 (Supp.1970), Oklahoma, Okl.Stat.Ann. tit. 21, sec. 1154 (Supp.1967), Pennsylvania, Pa.Stat.Ann. tit. 35, secs. 111, 1112 (1964), South Carolina, S.C.Code Ann. secs. 32--558, 11--157 (Supp.1971), South Dakota, S.D.Comp.Laws sec. 34--26--2 (1967), Tennessee, Tenn.Code Ann. sec. 53--513 (Repl.Vol.1966), Texas, Tex.Code Crim.Pro.Ann. art. 49.65 (Supp.1972), West Virginia, W.Va.Code Ann. sec. 16--4B--1 (1966), and Wisconsin, Wis.Stat.Ann. sec. 155.05 (1957); Implicit: see, E.g., Arizona, Ariz.Rev.Stat.Ann. secs. 36--831, 36--832 (1956), California, Cal. Health and Safety Code Ann. sec. 7113--14 (West, 1970), Nebraska, Neb.Rev.Stat. secs. 71--1339, 71--1341 (Reissue 1966), New Mexico, N.M.Stat.Ann. secs. 12--7--9 to 10 (Supp.1967), North Carolina, N.C.Gen.Stat. secs. 90--217 to 220 (Repl.ed. 1865), Oregon, Or.Rev.Stat. sec. 97.130 (Repl.Part 1961), Utah, Utah Code Ann. sec. 26--15--18 (Repl.Vol. 1969, and Washington, Wash.Rev.Code Ann. sec. 68.08.100 (Supp.1971)). We note, too, that the Uniform Anatomical Gift Act (Ill.Rev.Stat.1971, ch. 3, par. 551 et seq.), section 3 of which (par. 553) provides that one member of the survivors listed may donate all or parts of a decedent's body to qualified donees for scientific purposes, has been adopted by almost all of the States and the District of Columbia. S.H.A.1971 pocket part, p. 111.

In support of their contention that the statute is unconstitutional because it permits authorization of an autopsy by one surviving relative, plaintiffs argue that 'The General Assembly cannot abrogate, modify, restrict or abolish a common law right existing in...