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Postmortem Medical Procedures

A post mortem examination or autopsy is a medical procedure that consists of the examination of a corpse to determine the cause and manner of death and to evaluate any disease or injury that may be present.  It is usually performed by a specialized medical doctor.

Forensic autopsies are autopsies  performed to determine if death was an accident, homicide, suicide, or a natural death.  The extent of an autopsy can vary from the examination of a single organ such as the heart or brain, to a very extensive examination.  Examination of the chest, abdomen, and brain is considered standard autopsy procedure by most pathologists.

Performance of certain autopsies or other postmortem operations is subject to federal regulations.  According to some statutes, 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 obtaining consent of the authorized person.  Further, documents embodying consent must be made a part of the clinical record[i].

However, 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[ii].  A wrongful autopsy claim is based on the general principles governing the tort of negligence[iii].  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[iv].

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[v].  However, liability may be imposed if the person performing the autopsy exceeds his/her authority by causing a negligent or unnecessary mutilation of the body during the autopsy.

It is to be noted that an unofficial 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.[vi] 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.

An autopsy helps in evaluating new diagnostic tests, the assessment of new therapeutic interventions and the investigation of environmental and occupational diseases.  Moreover, medical knowledge on existing diseases derived from autopsy based research is considered to be important.

[i] 42 CFR 35.16

[ii] Kelly v. Brigham & Women’s Hosp., 51 Mass. App. Ct. 297 (Mass. App. Ct. 2001)

[iii] Rubianogroot v. Swanson, 13 Mass. L. Rep. 276 (Mass. Super. Ct. 2001)

[iv] Id.

[v] Lashbrook v. Barnes, 437 S.W.2d 502 (Ky. 1969)

[vi] Liberman v. Riverside Mem. Chapel, 225 A.D.2d 283 (N.Y. App. Div. 1st Dep’t 1996)

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