An autopsy is a postmortem assessment or examination of a body to determine the cause of death. An autopsy determines the exact cause and circumstances of death and discovers the pathway of a disease. If foul play is suspected, a government coroner or medical examiner performs autopsies for legal use. This branch of medical study is called forensic medicine.
Performance of certain autopsies or other postmortem operations is subject to federal regulations. Some statutes says that autopsies or other post-mortem operations can be performed on the body of a deceased patient only by direction of the officer in charge and only after getting the consent of the authorized person. Moreover, documents embodying consent has to be made a part of the clinical record[i].
Under the police power, there is no question of the right to perform an official autopsy on the body of a person who dies under suspicious circumstances[ii]. The problem of proper authority to perform a private autopsy on the body of the deceased patient arises regularly in connection with the practice of pathology by hospitals. The natural guardian of a child has a possessory right to the body for burial and can maintain an action for an unauthorized autopsy. Likewise, a surviving spouse has a similar right.
Therefore, a hospital or its medical personnel cannot order the removal of tissue or other body parts of a deceased person for forensic or scientific study without consent from the spouse or next of kin[iii]. A wrongful autopsy claim is based on the general principles governing the tort of negligence[iv]. As a result, the plaintiff must show that the defendant owed him/her a duty, that his/her act or failure to act was negligent and that the negligence caused him/her harm[v].
Federal law enables an authorized officer to order an autopsy to be performed on the body of a deceased inmate in the event of homicide, suicide, fatal illness, accident, unexplained death, if it is determined that such autopsy is necessary to detect a crime, protect the health or safety of other inmates, remedy official misconduct, or defend the U.S. or its employees from civil liability arising from the administration of the facility. Such officer can also order an autopsy or post-mortem operation, including removal of tissue for transplanting to be performed on the body of a deceased inmate of the facility, with the written consent of a person authorized[vi].
In order to avoid personal liability, a physician has to show that s/he received consent from the authorized person or that s/he acted under proper public authority. At the same time, an undertaker who has taken charge of a dead body will be held liable if s/he performs an unauthorized autopsy upon the body[vii].
It is to be noted that an unauthorized removal of a blood sample violates the rights of the person entitled to the possession of the body for burial. However, some statutes require the withdrawal of blood and urine specimens within a specified period of time in cases of accidental death involving a motor vehicle[viii]. Similarly, a hospital can order a Human Immunodeficiency Virus (HIV) test to be performed following the death of a patient in order to avoid or minimize an immediate danger[ix].
If consent is given by the concerned party for the performance of an unofficial autopsy, then there is no liability for a pathologist, even if such autopsy results in the removal and destruction of some organs or the failure to return organs to their original placement in the body[x]. However, liability may be imposed if the person performing the autopsy exceeds his or her authority by causing a negligent or unnecessary mutilation of the body during the autopsy.
It is to be noted that autopsy cannot be performed over the objection of a surviving relative or friend of the deceased that such procedure is contrary to the religious belief of the decedent[xi]. Similarly, an action to recover damages for the performance of an unauthorized autopsy is meant to compensate family members for the emotional and mental suffering occasioned they went through as a result of an improper autopsy.
[i] 42 CFR 35.16
[ii] Leno v. St. Joseph Hospital, 55 Ill. 2d 114 (Ill. 1973)
[iii] Kelly v. Brigham & Women’s Hosp., 51 Mass. App. Ct. 297 (Mass. App. Ct. 2001)
[iv] Rubianogroot v. Swanson, 13 Mass. L. Rep. 276 (Mass. Super. Ct. 2001)
[vi] 18 USCS § 4045
[vii] Phillips v. Newport, 28 Tenn. App. 187 (Tenn. Ct. App. 1945)
[viii] Swank v. Bertuca, 41 Ill. App. 3d 229 (Ill. App. Ct. 4th Dist. 1976), see also Cook v. Nassau, 33 N.Y.2d 7 (N.Y. 1973)
[ix] Gilkes v. Warren Gen. Hosp., 90 Ohio App. 3d 237 (Ohio Ct. App., Trumbull County 1993)
[x] Lashbrook v. Barnes, 437 S.W.2d 502 (Ky. 1969)
[xi] Liberman v. Riverside Mem. Chapel, 225 A.D.2d 283 (N.Y. App. Div. 1st Dep’t 1996)