Shipley v. City of N.Y.

• Decision Date: 10 June 2015
• Citation: 25 N.Y.3d 645,37 N.E.3d 58,16 N.Y.S.3d 1
• Parties: Andre SHIPLEY et al., Respondents, v. CITY OF NEW YORK et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

25 N.Y.3d 645

37 N.E.3d 58

16 N.Y.S.3d 1

Andre SHIPLEY et al., Respondents,

v.CITY OF NEW YORK et al., Appellants.

Court of Appeals of New York.

June 10, 2015.

Zachary W. Carter, Corporation Counsel, New York City (Ronald E. Sternberg, Lawrence S. Kahn and Richard Dearing of counsel), for appellants.

Ameduri Galante D'Agostino & Firscia, LLP, Staten Island (Marvin Ben–Aron of counsel), for respondents.

John C. Hunsaker III, National Association of Medical Examiners, Frankfort, Kentucky, amicus curiae.

OPINION OF THE COURT

PIGOTT, J.

At issue on this appeal is whether a medical examiner has a mandated obligation—pursuant to the Public Health Law and a next of kin's common-law right to immediate possession of a decedent's body for preservation and burial (commonly known as the "right of sepulcher")—to notify a decedent's next of kin that, although a decedent's body is available for burial, one or more organs and/or tissues have been retained for further examination and testing as part of an authorized autopsy. We hold that no such obligation exists.

I.

The tragic and unfortunate events from which this litigation originated occurred on January 9, 2005, when the decedent Jesse Shipley, a 17–year–old high school student, was killed in an automobile accident in Staten Island, New York. Dr. Stephen de Roux, a forensic pathologist and a medical examiner employed by the Office of the New York City Medical Examiner, conducted an autopsy of decedent the day following the accident at the Richmond County Mortuary.

The medical examiner spoke with decedent's father, plaintiff Andre Shipley, prior to conducting the autopsy. He apprised Mr. Shipley of his intentions and, even though it was not required, obtained Mr. Shipley's consent to perform the autopsy. Mr. Shipley asked the medical examiner to make decedent's body as "presentable as possible" for the funeral. During the autopsy, the medical examiner removed, among other organs, decedent's brain and "fixed" it in formalin¹ in a jar separate from tissue samples he had taken of other organs.² The jar was labeled with decedent's name and the date of the autopsy, and was placed in a cabinet in the autopsy room. The medical examiner's routine practice was to wait until the cabinet had accumulated at least six specimens before contacting a neuropathologist, Dr. Hernando Mena, who would at that point travel to Staten Island in order to conduct a neuropathologic examination of the brain specimens.

Once decedent's autopsy had been conducted, funeral home personnel retrieved decedent's body from the mortuary and a funeral was held on January 13, 2005.

In March 2005, forensic science students from decedent's high school took a field trip to the Richmond County Mortuary. During a tour of the autopsy room, some of the students observed the specimen jar holding decedent's brain. This information was relayed to decedent's sister, Shannon, who told her parents. On March 9, 2005, Dr. Mena examined the specimen and concluded that decedent had died of multiple blunt trauma to the head.

II.

The Shipleys³ commenced this action against the City of New York and the Office of the New York City Medical Examiner (collectively, the City), alleging negligent infliction of emotional distress resulting from the display and alleged mishandling and withholding of their son's brain. Following discovery, the City moved for summary judgment dismissing the complaint for failure to state a cause of action, arguing that, based on the complaint's language, the Shipleys were asserting that the City interfered with the Shipleys' common-law right of sepulcher. The City argued that the medical examiner had the authority to conduct the autopsy, and had received the consent of Mr. Shipley to do so in any event, and that the removal and retention of the brain by the medical examiner was authorized by law. The Shipleys countered that even assuming the medical examiner had the authority to conduct the autopsy, he had "mishandled" decedent's organs and "unlawfully interfered" with the Shipleys' right to decedent's "whole body."

Supreme Court denied the City's motion, holding that the City failed to establish as a matter of law that decedent's brain was lawfully retained for scientific purposes and that a question of fact existed as to whether the City interfered with the Shipleys' right of sepulcher when it failed to apprise the Shipleys before their son's burial that his brain had been removed and was in the possession of the medical examiner ( 2009 N.Y. Slip Op. 33249[U], 2009 WL 7401469 [Sup.Ct., Richmond County 2009] ).

The Appellate Division modified by deleting the provision of Supreme Court's order denying the City's motion for summary judgment seeking dismissal of so much of plaintiffs' first cause of action as was to recover damages for unauthorized withholding, mutilation, and display of decedent's body parts, and granting that branch of the motion, and, as so modified, affirmed ( 80 A.D.3d 171, 180, 908 N.Y.S.2d 425 [2d Dept.2010] ).

As relevant here, the Appellate Division held that the autopsy of decedent was authorized, even if Mr. Shipley had not consented to it, because the medical examiner had the statutory authority to exercise his discretion in performing the autopsy and removing and retaining organs for further examination and testing (see id. at 175–176, 908 N.Y.S.2d 425 ). Nonetheless, according to the Appellate Division, the medical examiner had "the mandated obligation, pursuant to Public Health Law § 4215(1) and the next of kin's common-law 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 [had] been fulfilled" ( id. at 178, 908 N.Y.S.2d 425 ). The Court deemed this obligation to be not only "ministerial in nature" but also one that was "clearly for the benefit of, and ... owed directly to, the next of kin," and this obligation could have been met with "the simple act of notifying the next of kin that, while the body [was] available for burial, one or more organs [had] been removed for further examination" (id. ). In the Appellate Division's view, such notification would have given the Shipleys an opportunity

"[to] 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 ... for burial or other appropriate disposition by the next of kin" (id. ).

The case thereafter proceeded to trial on the sole issue of whether the medical examiner returned decedent's body to the Shipleys without informing them that the medical examiner had retained decedent's brain (and therefore violated the Shipleys' right of sepulcher).⁴ The City called one witness, Dr. de Roux, who testified that the brain was the only organ that was removed for neuropathologic examination by Dr. Mena, but that he had obtained small samples of other organs and placed them in formalin. He retained the latter organ samples so that they could be microscopically examined at a later date in the event a question arose as to decedent's cause of death.

At the conclusion of the defense's case, the Shipleys moved for a directed verdict on the issue of liability, relying on the medical examiner's testimony that the Shipleys were never informed that the medical examiner had retained decedent's brain and other organs. The City also moved for a directed verdict, arguing, among other things, that there was insufficient evidence to establish a special relationship with regard to the right of sepulcher claim. Supreme Court granted the Shipleys' motion for a directed verdict as to liability.

Following a trial on damages, resulting in a verdict of $1 million for the Shipleys, the City's motion to set aside the verdict was denied. The Appellate Division affirmed the judgment entered upon the Shipleys' stipulation to a reduced award of damages (105 A.D.3d 936, 936–937, 963 N.Y.S.2d 692 [2d Dept.2013] ). The Shipleys consented to the reduced award. This Court granted the City leave to appeal (22 N.Y.3d 857, 2013 WL 6500625 [2013] ), bringing up for review the Appellate Division's order denying, in part, the City's motion for summary judgment.

III.

A medical examiner's authority to conduct autopsies is largely statutory. Title II of article 42 of the Public Health Law identifies those individuals who possess the legal authority to perform autopsy and dissection (see Public Health Law §§ 4209, 4210 ), and delineates criminal penalties for unlawful dissection (see Public Health Law § 4210–a ) and civil penalties for unauthorized autopsies conducted in good faith (see Public Health Law § 4210–b ). The Public Health Law also contains a religious exemption that prohibits a dissection or autopsy "in the absence of a compelling public necessity" where a "surviving relative or friend of the deceased" objects on the ground that the procedure is "contrary to the religious belief of the decedent" ( Public Health Law § 4210–c [1 ] ).⁵

Public Health Law § 4210 provides that a county medical examiner, or one acting at his or her direction, has the right to dissect the body of a deceased person (see Public Health Law § 4210[2][c] ). Additionally, New York City Charter § 557(f)(1) states, as relevant here, that the Chief Medical Examiner possesses "such powers and duties as may be provided by law in respect to [the] bodies of person[s] dying from criminal violence, by accident, by suicide, suddenly when in apparent health, when unattended by a physician, in a correctional facility or in any suspicious or unusual manner" (emphasis supplied). Medical examiners possess the discretionary authority to determine when an autopsy is necessary, and, when indicated, "the autopsy shall include toxicologic, histologic, microbiologic and...