ALBANY, N.Y. (AP) — New York's highest court was urged Monday to require medical examiners to inform families when they return autopsied bodies without certain organs.
The case involves a New York City couple who buried their 17-year-old son after a 2005 car crash not knowing his brain had been removed. Two months after the funeral, Jesse Shipley's high school class saw his brain in a labeled jar during a field trip to the morgue.
The Shipleys got it back and held a second funeral. A jury awarded them $1 million for emotional distress, reduced to $600,000 by a midlevel court.
Attorney Marvin Ben-Aron, representing the family, said at issue is "the common-law right of sepulcher," or giving next of kin the right to bury the body. "I'm talking about every facet of the body," he said.
"In this particular case, we had to sue," Ben-Aron said later.
Lawyers for the city countered at the Court of Appeals that pathologists have no legal duty in New York to notify families or return organs, though they have done it in the city since that midlevel court ruled four years ago.
Assistant Corporation Counsel Ronald Sternberg said 82 percent of families haven't wanted body parts back and a large portion wished they'd never been asked. He also noted that it is standard practice across the country to have the organs examined, then treated as medical waste.
"Many families, if not most families, do not want this information," Sternberg told the court. New York autopsies are mostly authorized by law in certain circumstances including accidental deaths. Jesse Shipley was a backseat passenger in the fatal crash.
Authorities say some organs can be immediately examined, but others, including the brain, have to be removed and placed in a preservative. It becomes firmer and easier to examine after a few weeks.
If families request organs' return, they are sent to the funeral home handling burial arrangements, Sternberg said. The city medical examiner's office performs about 5,000 autopsies a year. It also will hold onto a body at the family's request until all the organs are available, he said, adding that the various recent measures are burdensome.
Chief Judge Jonathan Lippman questioned why there wasn't prior simple notification to families. "This is an ancient right," he said.
Judge Jenny Rivera noted there are religious belief systems behind the burial process and the end of life.
Judge Eugene Pigott Jr. noted the absence of expert medical testimony countering the doctor who performed Shipley's autopsy, who said he followed standard protocols.
A court ruling is expected next month.