Medicolegal Issues and the Autopsy

Updated: Aug 05, 2019
  • Author: Richard M Conran, MD, JD, PhD, FCAP; Chief Editor: Kim A Collins, MD, FCAP  more...
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There are many benefits associated with performing an autopsy (postmortem examination) that involve the decedent's family, healthcare providers, the community and public health. Autopsies are divided into two categories: medical, authorized by the decedent, decedent's family or healthcare surrogate; and forensic, authorized by statute.

As outlined in related articles (see below), postmortem examinations in the hospital setting (medical autopsies) provide confirmation, clarification, and correction of antemortem diagnoses. These in turn provide reassurance to families who have suffered the death of a loved one. Reassurance can take the form of comfort that medical care was adequate or alleviate guilt associated with the death.

Autopsies can also be of great importance to the medical community. Postmortem investigations allow for the evaluation of new diagnostic tests, surgical techniques, devices, and drugs. The discovery of contagious infections, heritable diseases, and environmental toxins is possible. Advances in the fields of public health and epidemiology further the well-being of society. Postmortem discovery of occupational diseases and environmental hazards provides benefit to the community. Autopsy also provides an extension of medical knowledge and a means to document the health of society by establishing valid mortality statistics. In forensic autopsies, the postmortem examination establishes the cause and manner of death. Despite these factors, a study by Turnbull et al reported a steep decline in UK autopsy rates (a 0-5% rate in 2013 from a 25% rate 30 years prior). [1, 2]

Regardless of whether an autopsy is for medical or forensic purposes, an informed decision regarding the autopsy begins with knowledgeable pathologists, clinicians, and healthcare institutions. Legal considerations surrounding the autopsy should be considered and included in autopsy discussions. Pathologists need to be concerned with issues of authorization, performance, disfigurement, organ retention, failure to diagnose, and unauthorized release of the autopsy findings (report). The fear of medical negligence lawsuits based on autopsy performance or nonperformance is also of importance to both clinicians and healthcare institutions.

See also the following for more information:


Setting the Standard of Care

To combat the fears regarding medicolegal considerations, it is essential to understand basic tort law and the prevailing standard of care. Tort law surrounding medical malpractice assumes that the physician has a duty to provide medical care to the patient that adheres to the standard of care that most physicians in that field and in that medical circumstance would provide.

Various factors contribute to setting the standard of care. Tangible factors include written policies and guidance, such as statutes, regulations, codes of conduct, professional policy positions, operating instructions, and clinical practice guidelines. Beyond these, physicians must be attuned to more intangible considerations, such as customary and accepted practices in their respective fields of medicine.

The standard of care guides both the physician and decedent's family (patient) if injury occurs. When a breach of duty takes place, it must be determined whether the breach resulted in an adequately related, legally identifiable injury. The breach must be the proximate cause of the injury. Once this is ascertained, then compensatory damages can be assessed. If jurisdictional regulations allow, punitive damages designed to punish the wrongdoer can also be assessed that compensate for pain and suffering beyond compensatory damages.


Autopsy Authorization

Pathologists need to understand who has the authority to consent to an autopsy. Historically, common law principles were followed which stated that a "corpse has no value." [3, 4] This doctrine was tested in Patterson v Patterson [5] in which the New York Court of Appeals held that the next of kin has the right and duty to bury the body of the deceased. Ultimately, in Foley v Phelps, [6] the court concluded that the body of the deceased is held as a "sacred trust" by the next of kin and thus had the right to protect the body from an unauthorized autopsy. Liability, attached to those who transgress this right to protect, is imposed with the intent to uphold the doctrine that although there are no property rights attached to the dead body, next of kin have the right to prevent autopsy and disfigurement to the body.

In the United States, common law principles have been replaced by state statutes that deal specifically with the issue of medical autopsy authorization in most jurisdictions. [7] It is widely recognized that valid authorization is obtained by written agreement. Strict adherence to statutory constraints is imperative for the pathologist and hospital to avoid liability. In Bambrick v Booth Memorial Medical Ctr, [8] the court held that the defendant was liable for an unauthorized autopsy despite obtaining oral permission, as the statute required written authorization.

If the decedent is not able to make decisions relating to their health care, then many states allow that a healthcare surrogate has the right to authorize an autopsy. In some states, the health law surrogacy terminates at the time of death, leaving the disposition of the dead body, including autopsy authorization, to the next of kin. A potential conflict arises when a surrogate authorizes an autopsy in accordance with statute against the wishes of the legal next of kin.

Some states also determine a hierarchy among the next of kin that preferentially details who can authorize a medical autopsy. Finally, a will, advanced directive, or insurance policy can serve to instruct parties about the wishes of the deceased with regard to autopsy. Use of a will may be problematic, given that the decision to autopsy is immediate at the time of death and the will may not be available at that time. In the case of children, authorization by one parent is sufficient by statute in many states. [9] However, every state has unique requirements that must be fulfilled in order to avoid unnecessary litigation and liability.

For example, in Florida, required consent for autopsies begins with a clear definition of the word "autopsy" that states that this examination should be conducted only "to determine the cause, seat, or nature of disease." [10] The statute goes on to require written consent by the healthcare surrogate if one has been designated. If there is no healthcare surrogate, the statue details the next of kin who can authorize the autopsy. Finally, in cases in which obtaining a written consent unduly delays the performance of the autopsy, Florida statute authorizes the use of witnessed telephone permission. [10]

The statute (Medical autopsy. Fla Stat Ch § 872.04 (2006)) is provided below. [10]

"872.04 Autopsies: consent required, exception—

"(1) 'Autopsy' means a postmortem dissection of a dead human body in order to determine the cause, seat, or nature of disease or injury and includes the retention of tissues customarily removed during the course of autopsy for evidentiary, identification, diagnostic, scientific, or therapeutic purposes.

"(2) Unless otherwise authorized by statute, no autopsy shall be performed without the written consent by the health care surrogate, as provided in s. 765.202, if one has been designated. If a health care surrogate has not been designated, then written consent may be provided by the spouse, nearest relative, or, if no such next of kin can be found, the person who has assumed custody of the body for purposes of burial. When two or more persons assume custody of the body for such purposes, then the consent of any one of them shall by sufficient to authorize the autopsy.

"(3) Any such written consent may be given by telegram, and any telegram purporting to have been sent by a person authorized to give such consent will be presumed to have been sent by such person. Duly witnessed telephone permission is acceptable in lieu of written permission in those circumstances where obtaining written permission would result in undue delay."

It is necessary for the pathologist to know the statute of the state in which the autopsy is performed.

The following topics will be discussed below:

  • Informed consent

  • Authorization for forensic autopsy

  • Performance and body disfigurement

  • Organ retention in medical autopsy

  • Organ retention in forensic autopsy

Informed consent

Informed consent is a legal entity. Healthcare providers, pathologists and hospitals must adhere to it. Clear communication between physician and patient is an aspect of the due care a physician owes a patient. Patient-focused informed consent requires that a physician convey information based on what a reasonable patient would need to know in order to make a knowledgeable decision regarding their health. Physician-focused informed consent involves telling the patient what a physician in that community would be required to tell the patient. This aspect of informed consent follows what the standard of care requires from a physician.

Both statutory and case law speaks to the issue of informed consent. In Truman v Thomas, [11] the Supreme Court of California revisited Cobb v Grant [12] in which they held that patients must be told all information necessary to make an informed decision regarding proposed medical treatment. The court went on to conclude that it is the courts and juries who have the authority to determine what information is considered germane to decision making. [12] The court in Truman held that "the scope of a physician's duty to disclose is measured by the amount of knowledge a patient needs in order to make an informed choice. All information material to the patient’s decision should be given." [11, 13]

Many states have codified informed consent. For example, in Oregon, the statute requires a physician to explain the nature of the procedure, alternative treatments, and the risks associated with the procedure. [14] In Pennsylvania, the Medical Care Availability and Reduction of Error (MCARE) Act additionally requires physicians to provide information about their experience, training, and credentials for certain procedures. [15]

For medical autopsies, consent is usually obtained by the healthcare provider at the time of death and not by the pathologist who performs the autopsy. The issue of autopsy is unique and begs the question of whether informed consent is given and whether the pathologist's credentials need to be provided. The issue of informed consent with regard to organ retention came to public attention in 1999 when investigations revealed that Alder Hey Children's Hospital in Liverpool, England, retained the hearts of infants and children. [16, 17] This led to public outcry and examination into the issue of informed consent with regard to organ retention and autopsy.

Proposed guidelines for informed consent have been developed. Among these recommendations includes the requirement that the next of kin be given sufficient information to ensure that their understanding of the autopsy procedure is identical to the actual procedure performed. This is especially true with regard to organ retention. In some states, specific written consent to retain whole organs is essential to avoid litigation. If the organs are to be used for research or teaching, written consent is required in addition to the authorization for diagnosis. Pathologists must allow next of kin the opportunity to direct ultimate disposal of any organs or tissues retained as part of the autopsy. [18]

Authorization for forensic autopsy

The purpose of the forensic autopsy is to determine the cause and manner of death. State statutes do not require authorization from next of kin for forensic autopsies. In In re Johnson, [19] the New Mexico Supreme Court held that a physician who performs an autopsy upon a dead body under legal sanction, with ordinary care and skill, is not liable to the family of the deceased for the mutilation of the body without their consent. [19]

In some states, the decedent is treated as "quasi-property" creating a due process requirement that the next of kin be notified that an autopsy will be performed. This consideration was at issue in Ohio, where case law recognized that the next of kin has an interest to recover and dispose of organs removed after autopsy on a deceased family member. In Albrecht v Treon, [20] the Supreme Court of Ohio clarified this issue with regard to forensic autopsy.

The Court held that next of kin do not have the right under Ohio law to retrieve and dispose of the organs or body parts from a deceased family member who underwent a forensic autopsy. [20] The Court recognized that next of kin do have an interest in recovering organs from autopsies of family members; however, this interest does not equal a property right or "quasi-property" right with regard to forensic autopsy. [20] Writing for the majority opinion, Justice Stratton acknowledged that the issue of organ retention as it relates to autopsy is for legislatures, and not courts, to decide. The Ohio General Assembly subsequently addressed the issue. [21]

Various state statutes that regulate forensic autopsies include provisions relating to religious objections to disfigurement of the deceased. For example, New York state statute specifies that in the absence of "compelling public necessity," no autopsy shall be performed over the objection of a surviving relative or friend of the deceased that is contrary to the religious belief of the decedent. [22] The statute defines what constitutes a "compelling public necessity" as an autopsy performed in the conduct of a criminal investigation of a homicide or when the discovery of the cause of death is necessary to meet an immediate and substantial threat to the public health. If a criterion establishing a "compelling public necessity" is not met, then a special proceeding must be instituted in court to obtain authorization. [22]

Performance and body disfigurement

Pathologists need to follow standard of care practices when performing an autopsy to avoid litigation. This includes performing the autopsy in an appropriate environment and in accordance with case and statutory law. It is imperative that healthcare providers obtaining autopsy consent explain what will happen during an autopsy in language understandable to the next of kin or surrogate decision makers.

In Lashbrook v Barnes, [23] a pathologist was charged with mutilating the body by retaining the heart and placing the brain in the abdominal cavity after completion of the dissection. The Kentucky Court of Appeals held that when an autopsy is performed within the "customary and usual manner," the pathologist is not liable for mutilating the body. The issue with this case revolved around the fact that the plaintiff did not fully understand what an autopsy entails. The court stated that an autopsy requires an inspection and partial dissection of the dead body to learn the cause of death. This case highlights the importance of clear communication between the healthcare provider obtaining autopsy consent and the next of kin before autopsy and adherence to federal, state, and local regulations when performing the autopsy.

Pathologists are therefore bound by the consent received from next of kin and by current standards of practice when performing an autopsy. Liability occurs when the pathologist deviates from the standard of care or exceeds consent given by next of kin. In Whaley v County of Tuscola, [24] the issues of whether property rights exist with the deceased body and whether Fourteenth Amendment procedural due process rights were violated when corneas and eyeballs were removed from a deceased relative during autopsy and sold by the pathologist's diener were brought into question. [24]

The United States Court of Appeals for the Sixth Circuit acknowledged the doctrine held by the Supreme Court of the United States that state law largely decides property interests. In 1991, the Sixth Circuit decided Brotherton v Cleveland [25] and held that under Ohio law, property interest in the deceased body does exist with regard to autopsy by creating a "legitimate claim of entitlement." [26] Although district courts in Ohio argued that there is no "quasi-right" attached to the deceased body, the Sixth Circuit held that the "substance of the right" to receive the body for burial creates a "legitimate claim of entitlement" in the body. [26]

Relying on the holding in the Brotherton case, the Sixth Circuit held that in the case of Whaley, the next of kin had a property right under Michigan state law and that the selling of the corneas and eyeballs to an eye bank was conducted without authorization from next of kin. [24] By basing their reasoning on the "substance of the right" argument in Brotherton, the Court concluded that Michigan state law is more explicit than Ohio law on the issue of property rights and deceased bodies. Michigan state law authorizes next of kin the right to protect the deceased body from mutilation. Thus, the Court held that next of kin may bring a claim of violation under the Due Process Clause of the Fourteenth Amendment. [24]

These cases make clear that pathologists must perform autopsies within the standards of practice of their community. It is also apparent from these cases that the next of kin needs to be informed of autopsy details to acquire proper authorization. The pathologist must follow the confines of this authorization. Exceeding consent granted by next of kin will make the pathologist vulnerable to claims of body disfigurement or property divestment.

Organ retention in medical autopsy

Historically, the standard autopsy practice was to remove the organs and retain them for a time period for various reasons. In several states, courts have held that the unauthorized retention of internal organs by the pathologist performing the autopsy presents a basis for damages for mental anguish suffered by the surviving next of kin. In such cases, the court will interpret the prevailing state statute and strictly construe the wording of the statute when deciding whether there was violation of a right. However, if the organs are retained for further diagnostic (pathologic) study, there is no basis for a claim. [27]

The concept of mental suffering as a result of organ retention was at issue in Hendriksen v Roosevelt Hospital. [28] In this case, the plaintiffs gave authorization for the performance of an autopsy, including examination of the central nervous system, to determine the cause of death. However, at the conclusion of the autopsy, the organs were not returned to the body.

The Southern District of New York held that although the pathologist performed the autopsy with consent, he would have needed additional consent to retain the organs of the deceased for further examination. Should a jury find that the pathologist did not receive consent for this action, the hospital would be found liable for exceeding consent. The court held that "authority to perform an autopsy derives solely from statute. However, [n]othing in the statute grants so broad an authority to authorize, [complete retention of organs at autopsy]." [28] This narrow reading of New York statutory law led to the court’s decision that the pathologist is bound by the consent granted to him to prevent mental suffering by next of kin. [28]

It should be noted that courts interpret state statutes differently. Although the Southern District of New York concluded that separate authorizations are needed for autopsy and organ retention, the Kentucky Court of Appeals held otherwise. In Lashbrook, [23] the appellate court held that the heart retained by the pathologist for further pathologic examination was consistent with authorization for autopsy and thus, the pathologist was not liable for "mutilation" of the body.

To avoid possible litigation, some state statutes require that autopsy consent include a phrase regarding the retention of tissues to be used for "scientific investigation, including research, teaching, and therapeutic purposes." [29] In other jurisdictions, retention of organs for research or medical education requires permission of the legal next of kin and must be specifically identified in the autopsy authorization.

The key to the issue of organ retention is informed consent. The pathologist must specify disposition of tissue in the autopsy consent form. Clarification such as, "retain the brain for fixation prior to sectioning" or "organs may be retained for further diagnostic procedures" should be included in the consent form. Furthermore, discussion about this issue should occur between the healthcare provider obtaining consent and the next of kin.

Organ retention in forensic autopsy

Authorization for forensic autopsy as discussed earlier is by statute alone (see Authorization for Forensic Autopsy, above). Consent from next of kin is not required when the autopsy is conducted for civil or criminal legal proceedings. However, this statutory consent does not apply to organ retention. In Kohn v US, [30] next of kin sued for damages associated with pain and suffering on behalf of the deceased.

The autopsy on a soldier who was killed by a fellow soldier was authorized by the US Army but without the family's permission. During the autopsy, some of the organs were retained and subsequently cremated by the hospital. The family sued for negligent acts that violated the principles of their Jewish faith and caused them much emotional distress. The Eastern District of New York Court held that the government had the right to perform the autopsy without the obligation of obtaining the family's consent. However, the government had a moral and legal requirement to return all organs before burial in keeping with the family's faith. [30]

Relying on the Brotherton decision, [25] the Southern District of Ohio decided Hainey v Parrott in 2005. [31] In Hainey, the medical examiner, following the standard of practice, fixed the brain for 2 weeks before sectioning. The other organs were returned to the body and the body was released. The brain tissue was examined after sectioning and later cremated. The deceased's next of kin brought suit claiming violation of their due process rights to be notified that the brain was retained and to control the final disposition of the body and organs of the deceased. [31]

The court held that the next of kin had a constitutionally protected property right in the decedent's brain and were entitled to notice and the opportunity to reclaim the organs before disposal. After summary judgment for the plaintiffs in 2005, a notice of a proposed settlement was given to over 900 class members in June 2007. The settlement required that $5.9 million be divided among over 900 class members. It also required that the coroner give notification to next of kin of organ retention and adhere to the family's decision regarding final disposition. [31] In response, the Ohio General Assembly passed a statute in 2006 classifying retained autopsy specimens from forensic cases as medical waste and authorized the coroner to dispose of them according to federal and state regulations. [21]

The above cases demonstrate the importance of reviewing jurisdictional statutes regarding autopsy and organ retention. As a general guideline, these cases make clear that if the tissue is not needed for diagnosis or evidentiary purposes, it should be returned to the body and the next of kin. [32]


Failure to Diagnose

It is imperative that the pathologist follow the standard of care when diagnosing the decedent's condition for medical autopsies. Failure to correctly diagnose the decedent's condition could result in liability. In Ayala v Murad, [33] a pathologist was held liable for failing to diagnose ovarian cancer. [33]

For forensic autopsies, the issue of immunity for the pathologist versus liability for negligent autopsy performance is currently debated. In the investigation of an Ontario pediatric forensic pathologist, it was discovered that from 1991 to 2002, the pathologist performed 45 autopsies for suspicious child death cases. Of these, the diagnosis in 20 cases was brought into question when a panel of experts in the field of pathology disagreed with the pathologist's findings.

A $7 million lawsuit against the Ontario Coroner Office and another suit against the provincial government demonstrated the extent of pathologist liability for failure to diagnose. In one of these cases, the plaintiff argued that due to the inaccuracies of the autopsy, she was falsely imprisoned for the death of her daughter. The law that prevented her from suing the pathologist directly, because of the protection granted to witnesses at trial, was struck down. The pathologist was held liable for $44,000 in legal bills. [34]

Failure to diagnose poses liability concerns for hospitals as well as pathologists. In St. Elizabeth Hosp. v Garrard, [35] the plaintiffs, parents of a stillborn infant, brought a claim of negligence against the hospital for nonperformance of an autopsy on their stillborn infant. The pathologist and the parents had agreed to the performance of an autopsy to determine cause of death. The mortuary disposed of the stillborn infant in a common grave without disclosure to the parents.

The parents claimed damages based on the following: (1) never knowing the cause of death of their baby, resulting in worry concerning future pregnancies; (2) lack of knowledge regarding the whereabouts of the infant's burial location and, therefore, the inability to perform traditional customs, such as placing flowers on the grave or visiting a grave site; and (3) the loss of the opportunity to conduct a funeral and experience the grief necessary for healing after the loss. The court found that there was a basis for negligent infliction of emotional distress on the part of the hospital. [35]


Unauthorized Release of the Autopsy Report

The report from a medical autopsy is handled as a medical record. Pathologists should comply with hospital policy regarding medical record privacy. Hospital policy often specifies who may receive a copy of the autopsy report. Generally, the medical records department, the decedent's physician, and various hospital committees receive copies of the report. Statutes may require state agencies to receive copies as well.

For example, in New Hampshire, the hospital is required to provide the report to the Bureau of Maternal and Child Health, Division of Public Health Services, and the Department of Health and Human Services when a diagnosis of sudden infant death syndrome (SIDS) is made. [36] The dissemination of forensic autopsy reports is governed by statute and regulations. Disclosure under the Freedom of Information Act is possible for public documents. [37]


Medical Negligence

Negligence claims are based on deviations from the standard of care. The autopsy does not increase the risk of medical malpractice. Rather, it allows the pathologist to perform the examination under guidelines proposed by state statute and common law. [38] The factual information obtained from an autopsy provides grounds for a proper defense if a lawsuit is filed. [39] Lorri et al examined 980 closed anesthesia malpractice claims and found that a significant nonanesthetic contribution to death was identified in two thirds of cases in which an autopsy was performed. [40] The autopsy potentially avoids speculation on both sides and precludes "frivolous allegations" regarding the cause of death. [41]

The medical autopsy has the potential in risk management activities to the following [41] :

  1. Eliminate suspicion

  2. Provide reassurance to families

  3. Substitute facts for conjecture

  4. Construct a better defense

  5. Reduce the number of claims

  6. Improve the quality of care

In one study, autopsies performed on perioperative deaths involved in medical negligence cases identified unexpected information and complications. [42] This information helped explain the cause of death and resolve conflict between the surgeon and the family. Therefore, pathologists and healthcare providers should note that findings made during autopsies may provide defense in cases of medical negligence.

Based on tort law principles, the four elements to a medical negligence lawsuit include the following:

  • The physician owes a duty to the defendant (patient).

  • The physician breaches that duty (standard of care).

  • The breach is the proximate cause of the injuries to the defendant.

  • The defendant has damages.


Sovereign Immunity and the Medical Examiner

The Eleventh Amendment to the United States Constitution protects a state government from being sued in federal court, unless the state agrees to the suit or Congress revokes sovereign immunity of that state. [43] Furthermore, the Supreme Court held in Penhurst State Sch & Hosp v Halderman [44] that the Eleventh Amendment bars suits against state officials, as they are extensions of the state government. [45] In addition, any waiver given by the state or by Congressional decree must be "unequivocally expressed" and not implied. [46]

Given that the application of sovereign immunity and the protection of the Eleventh Amendment are partially a state issue, two guidelines can be used to determine whether a situation falls under its protection. The first is the determination of whether the Federal Tort Claims Act ("FTCA") applies to the situation in question. The FTCA allows that an individual may sue the government "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." [47] Thus, the dilemmas of whether a deceased body is considered property and whether the office of a medical examiner (pathologist) / coroner falls under an exception set forth by the FTCA come into question.

The second consideration in determining whether the Eleventh Amendment is invoked relates to financial obligations of the state. In Hess v Port Authority Trans-Hudson Corp, [48] Justice Ginsberg, writing for the majority opinion, made clear that if an enterprise suffers financial losses and a state government is obligated to bear the debt, then the Eleventh Amendment should be called upon. [49] This can be applied to the business of a medical examiner at a state medical examiner's office.

In Brotherton v Cleveland, [50] the United State Court of Appeals for the Sixth Circuit decided a case in which the plaintiff, a widow, sued the county coroner for removing her deceased husband's corneas over her objection. [51] The defendant, Dr. Frank Cleveland, argued that as a state official, he could not be sued because of protection afforded to him under the Eleventh Amendment. [51] The Sixth Circuit held that because Dr. Cleveland works without state oversight and Hamilton County, not the State of Ohio, would handle the debt of the county coroner's office, Dr. Cleveland was not protected under the Eleventh Amendment. [51] Hence, the pathologist could be found liable for his actions. Although Brotherton found that the Eleventh Amendment did not apply to a medical examiner working in a county office, the case implies that if Dr. Cleveland were an Ohio state employee, he might be protected under the Eleventh Amendment.

In New Mexico, the application of sovereign immunity relies on whether the situation in question falls within an FTCA exception. [52] The United States Court of Appeals for the Tenth Circuit recently decided Ross v The Board of Regents of the University of New Mexico, [53] which involved the question of Eleventh Amendment protection of a medical examiner. [54] In Ross, the plaintiff argued that the Office of the Medical Investigator at the University of New Mexico ("OMI") should be held liable for the action committed by the OMI pathologist of removing the brain and spinal cord of the deceased without the authority of the family. [54] The Tenth Circuit held that the OMI, and thus, pathologist, are not included within the exceptions enumerated by the FTCA. The medical investigator and the OMI are therefore protected under the Eleventh Amendment as a state official and state agency, respectively. [54, 55]

These cases highlight the issue of whether the medical examiner is considered a state agent or an autonomous entity. It is necessary for pathologists working in government institutions to understand whether such institutions are state operated or supported by local government. An understanding of Eleventh Amendment and sovereign immunity protections is helpful for the medical examiner employed by state or local governments in determining liability.


Institutional Liability

It is important to note that hospitals have a fiduciary duty to protect their patients. Thus, it can also be liable to patients for negligence committed by its employees. Many states have established the corporate negligence theory with regard to hospital liability as a result of physician malpractice.

The seminal case regarding hospital negligence is Adamski v Tacoma General Hospital. [56] In this case, the court held that despite how a physician is compensated, whether as an employee or as an independent contractor, the hospital could be liable for negligence caused by that physician. The court developed a 2-pronged test to determine whether liability exists: (1) It must be recognized that the hospital publically regards the physician as its agent, and (2) a significant relationship between the hospital and the physician needs to be apparent. [56]

In Pedroza v Bryant, [57] the liability imposed on the hospital was limited to negligent medical actions performed within the confines of the hospital surroundings. In addition, the Pedroza court established that the standard of care for hospitals is the standards purported by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) ("Joint Commission") and should be incorporated into hospital bylaws. [57] Furthermore, hospitals have a fiduciary obligation to comply with their bylaws including JCAHO standards relating to end-of-life treatment. This is exemplified in St Elizabeth Hosp v Garrard, in which the court found a basis for negligent infliction of emotional distress on the part of the hospital for not performing a next-of-kin–authorized autopsy. [35]



Despite the decline in the autopsy rate nationwide, the autopsy does provide benefits to society and families. [1] Pathologists must be aware of the legal issues regarding autopsy performance to avoid liability for themselves and for the healthcare institutions that employ them. Informed consent, including whether organs are retained, must be sought from the next of kin in medical autopsies. For forensic autopsies, care must be given to jurisdictional statute or administrative regulations.

Finally, many courts have found a property right in the deceased body for the next of kin. Therefore, the next of kin should be notified regarding autopsy performance and the disposition of organs at the completion of a forensic case. Performing autopsies according to the prevailing standard of care can provide valuable information to the decedent's family, healthcare organizations, and the community and provide a potential defense in medical negligence cases.