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New York Unwanted Autopsy Lawyers

What Is the Right of Sepulcher?

New York Unwanted Autopsy Lawyers Under New York Law family members of a deceased person have an absolute right to the possession of their body for the purposes of preservation and burial. In legal terms, this is referred to as a right to sepulcher. It is part of our common-law tradition in the state of New York. Despite the widely recognized right to the sepulcher, many violations still occur. Violations to the right of sepulcher can arise in a variety of different settings including unauthorized autopsies, inadvertent disposition of remains, and failure to notify the next of kin of a death. 

In many cases, a person may be involved in an accident and their body is recovered by a city or state agency. Their organs may then be harvested before family members are even informed that their loved one died. But this is against the law. City officials must inform family members of the death of their loved ones. They must then wait to see if they have religious or cultural objections to organ harvesting before such a procedure can go forward. If government officials have interfered with your right to the remains of your loved one, please feel free to give our attorneys a call anytime at (516) 908-9792. What follows below is a case study for a right-to-sepulcher claim that we handled here at Gersowitz Libo & Korek, P.C. 

John Doe v. City of New York

Family members of the decedent brought an action against city and city employees, asserting claims for breach of duty to notify them of the decedent’s death, deprivation of the common-law right of sepulcher, conduction of an autopsy in the absence of compelling public necessity, and deprivation of next of kin’s opportunity to claim body and object to performance of the autopsy. 

On Sunday, April 20, 2008, at about 1:00 a.m., defendant New York City Police Officers responded to a radio call of an accident on the Bronx River Parkway. Upon arriving at the scene, they observed one vehicle positioned across all three lanes of the roadway and another, a Nissan Maxima, on its roof in a grassy area on the shoulder. The operator of the Maxima was identified by the number on the driver’s license found in his wallet. The Maxima had struck a tree, and its driver was ejected through the sunroof. He was declared dead by emergency medical personnel.

City officials proceeded to perform an autopsy, even though it was clear the victim died due to severe blunt force trauma from the car accident. This was a violation of the administrative code which provides that when a death is caused by obvious traumatic injury, the medical examiner “shall certify the cause of death and file a report of his or her findings.” Because the autopsy damaged the body, which violated the family’s Muslim religion and rites, they decided to transport the remains to Kosovo for religious rituals, which lasted about a month. In their several bills of particulars, each individual plaintiff alleges that the various defendants’ failures and omissions caused serious emotional suffering and distress, anxiety, and mental anguish. 

Unauthorized Autopsies

When a government agency improperly deals with a deceased person’s body or interferes with a family member’s right to sepulcher, the family members may be able to seek damages. Consider, for example, Shipley v City of NY, 25 NY3d 645, 653 [2015], citing Mack v Brown, 82 AD3d 133, 137 [2d Dept 2011]. The court held, “If a violation of the right of sepulcher is established, the next of kin may be compensated for the emotional suffering and mental anguish which they experienced as a result.” There are certain situations in New York when autopsies can be performed regardless of familial consent. 

  • Death appears to be caused by criminal violence, suicide, or casualty.
  • A death is caused by an unlawful act or criminal neglect. 
  • A death is suspicious or unusual. 
  • Death occurs in a public institution other than a hospital, infirmary, or nursing home. 

In most other situations, a state agency such as a coroner cannot simply perform an autopsy at their own discretion. See, for example, New York Public Health Law § 4214(1). Government officials must get permission from the family. Many families will not elect to have their loved ones undergo autopsies on religious or cultural grounds. These preferences must be respected. When they are not respected, this could form the basis of a civil claim. 

Inadvertent Disposition of Remains

New York Public Health Law 4200 sets forth guidelines regarding the duty of burial. As set forth in the statute, “Except in the cases in which a right to dissect it is expressly conferred  by  law, everybody of  a deceased  person,  within  this  state,  shall  be  decently  buried  or incinerated within a reasonable time after death.” New York Public Health Law 4201 indicates that the disposition of remains includes care, disposal, transportation, burial, cremation, or embalming of a descendant. Despite this requirement, bodies are not always properly disposed of by state agencies. These violations could allow families to recover damages through a sepulcher claim. 

Failure To Notify Next of Kin

City officials must make an effort to locate and timely notify a deceased person’s next of kin of their death. See, for example, Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 31, 877 N.Y.S.2d 300 (1st Dept. 2009). In this case, Leonard Melfi was buried in a mass grave and his body was used for embalming practice. There was no indication in the record that the City defendants made any effort to locate and notify the next of kin, who did not learn of the death for several months. This type of neglect can cause serious and lasting emotional harm to family members.

Illegal Organ Harvesting

Organ donations save lives and are an important part of the medical field. But these donations have to be consensual. A person can volunteer to have their organs donated upon death, which can be indicated on a driver’s license. Or a family member can volunteer to have their loved one’s organs donated after their death. But this is a personal choice that individuals and family members should make. What the government or a hospital cannot do is unilaterally decide to harvest the organs of a person that is deceased. This is yet another violation of a family’s right to sepulcher. 

In one particular lawsuit, the New York Organ Donor Network was accused of pressuring hospitals to declare patients brain dead to facilitate organ harvesting. There was even one instance where a patient allegedly showed clear signs of brain activity during transplant surgery. If someone that you love has had their organs illegally harvested, you are able to seek some measure of justice through a legal claim. 

Getting Legal Help With A Sepulcher Rights Lawsuit

Best Lawyers: Edward Gersowitz, Jeff Korek and Michael Fruhling - PartnersExperiencing the death of a loved one is already one of the most profound and difficult things that most people will ever go through. This pain from that loss can be compounded when a government agency performs an unauthorized autopsy or fails to return a person’s body back to their family. If your right to sepulcher has been violated you may have legal recourse through a civil claim. Our team of experienced unwanted autopsy attorneys at Gersowitz Libo & Korek, P.C. are here for you. We have recovered over $1 billion for our deserving clients. Whether you just have legal questions or need any type of support after an incident we may be able to help. You can reach out to us anytime at (516) 908-9792.


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