New York Family Law Blog
This action is based on allegations that the autopsy performed on the body of claimant’s son and a State prison inmate at the time of his death, was performed in violation of Public Health Law § 4210-c, a statute protecting those who have religious objections to autopsy or dissection. Defendant contends that the autopsy was required by County Law § 674(5) and that, in any event, the State cannot be held responsible for the procedure because it was performed by county officials.
In 1983, an inmate in the State prison system, was diagnosed as suffering from AIDS (Acquired Immune Deficiency Syndrome). Approximately two years later, he became seriously ill with an AIDS-related infection and, on December 10, 1985, was transferred from Greene Correctional Facility to Greene County Memorial Hospital. He died in the hospital shortly after midnight on December 22.
The inmate’s family was notified of his death at approximately 1:00 a.m. on the morning of December 22 by a telephone call from his treating physician. Claimant testified at trial that, after informing her of her son’s death, the physician asked if he could perform an autopsy. She said that she told him “No, according to the Jewish religion you’re not supposed to perform an autopsy.” The physician called again at approximately 8:00 a.m. and asked a second time if an autopsy could be performed. Claimant testified that she responded, “I told you that hours before, that you cannot perform an autopsy to a Jewish person–and he was religious.”
As indicated, the family is Jewish. Claimant testified that they attend an orthodox synagogue and observe many, although not all, of the traditions of the religion, and she stated that she kept a kosher household until her son’s death. The Court allowed testimony about her son’s participation in religious activities, both as a youth and while in prison, as well as some cross-examination on the question of the decedent’s religious observance, but, for the reasons discussed below, does not consider it relevant to the legal issues presented by this action. The testimony of Rabbi confirmed that in the Jewish religion, any assault on the body of a deceased is considered desecration and is to be avoided in all but the most extraordinary circumstances.
An “inquisition” relating to the death of the inmate Greene County coroner wrote that he was notified of the death at approximately 9:30 a.m. on December 22 and arrived at the hospital around 10:00 a.m. to observe the body and to determine the time of death. At approximately 11:00 a.m., an autopsy was performed, at his direction.
Unless authorized by law or performed pursuant to permission given by the deceased, the autopsy or dissection of a human body is illegal and any person who “makes, or causes or procures to be made” any dissection is guilty of a misdemeanor (Public Health Law § 4210-a). Persons responsible for an unauthorized autopsy being performed may also be liable for money damages in a civil action brought by the decedent’s next of kin. “An action to recover damages for the performance of an unauthorized autopsy is designed to compensate family members for the emotional and mental suffering occasioned by an improper dissection of a decedent’s body”. Defendant’s motion, on which decision was reserved, to dismiss the instant claim because it is based on an intentional tort and was not filed within one year of the date on which it accrued.
Defendant contends that the autopsy of the body of Arthur Schwartz was not only authorized but required by County Law § 674(5). In 1985 this provision stated, in pertinent part, as follows: The coroner, coroner’s physician or medical examiner shall promptly prepare an autopsy report with respect to any death occurring to an inmate in a correctional facility within his county or while not occurring in a correctional facility the cause of death is related to the incarceration or detention of a person in a correctional facility within his county.
In addition, section 677(6) of the County Law required that copies of any autopsy report, along with all other information relating to an inmate death, be provided “promptly” both to DOCS and to the MRB. Then, as now, section 16 of the Correction Law makes the State, rather than the counties, responsible for paying the costs of autopsies performed on State inmates.
Section 4210-c of the Public Health Law, which was enacted in 1983, requires that certain specific steps be taken when (1) a surviving relative or friend raises objections that a dissection or autopsy “is contrary to the religious belief of the decedent” or (2) there is “otherwise reason to believe” that such a procedure would be contrary to the decedent’s religious beliefs. This statute applies “notwithstanding any other provision of law” ( § 4210-c[1].
The statute does not necessarily prevent an autopsy from occurring, but it places specific limits and restrictions on the performance of such a procedure. An immediate autopsy may occur, despite religious objections, if there is a “compelling public necessity” requiring it, but the term “compelling public necessity” is strictly limited to only three specific situations, none of which were present here. Where religious objections have been raised and there is no compelling public necessity, notice must be given to the next of kin or friend and there must be a delay of forty-eight hours before an autopsy is performed, so that the objecting party may institute legal proceedings “to determine the propriety of such dissection or autopsy”. This mandatory waiting period may be dispensed with only by court order.
DOCS and its role in the custody, control and care of State prison inmates needs no detailed discussion. SCOC is an oversight and rule making agency that is separate from DOCS and has jurisdiction over both State and local correctional facilities. Within this agency, the MRB is charged with investigating “the cause and circumstances surrounding the death of any inmate of a correctional facility”. When necessary, SCOC has commenced judicial proceedings to enforce the MRB’s right to obtain information needed for its investigations.
In addition to the autopsy reports which must be provided to the MRB by county coroners is also required to provide the MRB with an autopsy report in connection with each inmate death.
Had no religious objections been raised, it is undisputed that County Law § 674(5) authorized the coroner to perform an autopsy on the body of the inmate and, indeed, required him to do so if he concluded (as he must have done in this instance) that the inmate’s death was related to his incarceration. This authority, however, is limited by the provisions of Public Health Law § 4210-c which, by its express, unequivocal terms, applies to autopsies performed under the authority of “any other” statute.
The requirements of section 4210-c were violated in connection with the autopsy performed on Arthur Schwartz. There was no “compelling public necessity” as that term is defined in the statute, and, despite the clearly-stated objections of the claimant, 10 she was not notified that an autopsy was going to be performed and given forty-eight hours in which to institute legal proceedings; nor was a court order obtained to waive that mandated period of delay.
Defendant asserts that even if Public Health Law § 4210-c was violated, the State cannot be held responsible because the autopsy was performed by county officials, not anyone acting on behalf of the State. The question of whether liability can fall on a party that does not actually perform the unlawful autopsy has been addressed and decided in Rotholz v. City of New York 151 Misc.2d 613, 582 N.Y.S.2d 366, which appears to be the only published decision dealing with section 4210-c of the Public Health Law.
In that case, the family’s religious objections to the procedure were made known to physicians at Lenox Hill Hospital but were not made known to the office of the Chief Medical Examiner of the City of New York, either when that office was notified of the death or, later, when the body was transferred to the medical examiner. The medical examiner’s office, which performed the autopsy, was absolved of responsibility because it had no notice of the religious objection, but the hospital’s effort to have the case against it dismissed was denied. Relying on Public Health Law § 4210-a, which imposes criminal penalties on anyone who “makes, or causes or procures to be made, any dissection of the body”, the Court held that the hospital “by failing to inform the Medical Examiner’s office of plaintiff’s objection to performance of an autopsy caused or procured an unauthorized autopsy on the body of the decedent”. The relevant question here, therefore, is whether State officials “caused” this autopsy to be performed in violation of the Public Health Law or, in any other fashion, are legally responsible for it being performed.
Under common law, the body of a deceased person may not be abandoned or treated disrespectfully by the person or entity responsible for it–traditionally the person “under whose roof” the death took place–until it has been claimed by surviving family members or appropriate public officials or, if unclaimed, until it has been given a decent burial or cremation.
The inmate was in the custody and control of DOCS prior to his death, and DOCS became responsible for his body at the time of death. This responsibility continued until the body was claimed by the members of his family. If there had been no family member able or willing to claim the inmate’s body, DOCS would have had a further duty to provide a decent burial or cremation, a duty evidenced by the graveyards attached to the State’s correctional institutions.
The duty owed to the body of a deceased is conditioned only where “a right to dissect it is expressly conferred by law”. Thus, the person or entity responsible for a dead body must permit an autopsy to be performed when one is required by law. In the typical case, therefore, DOCS is not required to release the body of a deceased inmate to family members or provide it with appropriate burial until after a coroner or medical examiner has performed the autopsy expressly authorized by County Law § 674(5). If, in a particular instance, the MRB decided to have a second autopsy carried out on an inmate’s body, pursuant to Correction Law § 47(1)(c), DOCS would be required to permit that procedure as well.
This was not the “typical” case, however. Here, religious objections to an autopsy were raised in a timely fashion by the persons authorized to make such objections and, as a result, Public Health Law § 4210-c became applicable. Once the threshold for invoking this statute has been met, as it was here, the legal authority or requirement for an autopsy contained in County Law § 674(5), in Correction Law § 47(1)(c), or in “any other” statute is stayed unless and until the procedures called for in the Public Health Law provision have been carried out. Not only was the autopsy performed on the body of the inmate not expressly authorized by law, it was expressly prohibited by law.
DOCS, which was legally responsible for the inmate’s body during this period between death and its conveyance to family members, was fully aware that religious objections had been raised by members of the decedent’s immediate family and, thus, that Public Health Law § 4210-c stayed, at least temporarily, any other statute authorizing an autopsy to be performed. Under these circumstances, DOCS had a duty not only to refuse permission for the autopsy but, if the situation called for it, to take affirmative steps to stop any dissection of the body.
In the instant case, however, the coroner’s uncertainty and reluctance to perform the autopsy are readily apparent. When apprised of the family’s objections, he arranged for DOCS to be contacted and informed of these objections, and he requested written “authorization” from the State if the autopsy was to be performed. Rather than carrying out its duty to forbid an autopsy under these circumstances, DOCS turned the coroner’s inquiry over to another State agency, SCOC, and left it to them to respond. The response given by these State officials was, for all practical purposes, a direction to the coroner that he must perform the autopsy and simply ignore the family’s objections to the procedure.
Under these circumstances, the response given to the coroner was tantamount to an order that he ignore the family’s objections and proceed with the autopsy. Because this order or direction came from the State agency responsible for the decedent’s body (DOCS) and the agency responsible for investigating all inmate deaths (SCOC), and because the coroner owed a statutory duty to provide autopsy reports to both agencies, it carried the authority of a legal mandate. The Court has no difficulty in finding that without such authoritative direction from the State, the coroner would not have performed an autopsy on the body of Arthur Schwartz.
Accordingly, the Court finds that the autopsy performed on the body of the inmate was unlawful in that it was performed in violation of Public Health Law § 4210-c. In view of its responsibility for the body, the State, by failing to prohibit the procedure and by not taking the necessary preventive steps, caused the autopsy to be performed and, in fact, directed the coroner to carry out the procedure despite the family’s objections.
If you are facing a similar situation, seek the help of Stephen Bilkis and Associates.