21 year old Jesse Adams died of a heart condition shortly after turning 21. During a renewal of his driver’s license he signed a card indicating his intent to make an anatomical gift of his body organs. Meanwhile back at the ranch Stanley Medical Research Institute (SMRI), a Maryland non-profit corporation dedicated to research of certain brain disorders had entered into a deal with the King County (Seattle, Washington) Medical Examiner to fund a pathologist position in the medical examiner’s office in exchange for the procurement of brain tissue from corpses passing through the examiner’s office- sort of a brain exchange program. Dr. Nabila Haikal was SMRI’s contribution to the examiner’s office. When Jessie died, Dr. Haikal called plaintiff, Nancy Adams, Jesse’s mother to ask for permission to take brain tissue from Jesse for research. The parties dispute the scope of the removal described, but ultimately all of Jesse’s brain ended up at SMRI while the Adams thought only a small sample would be taken. Later in a television program, the Adams learned that Jesse’s entire brain had been taken and now assert damages suffered from grief and depression.
The Adams brought suit against the County and SMRI claiming a private right of action under the Washington Uniform Anatomical Gift Act (WAGA), tortuous interference with a dead body, conspiracy and fraud. In Nancy Adams and Matthew Adams v. King County, Stanley Medical Research Institute and E. Fuller Torrey, No. 81828-1 (September 25, 2008), the Washington Supreme Court overturned a trial court order dismissing the case on summary judgment. The Supreme Court held that by its express language that WAGA only permitted hospitals to accept anatomical gifts, consistent with the intent to satisfy the demand for transplants. Given that
WAGA didn’t protect the defendants, the extent of the consent given by the plaintiffs became a question of fact for a jury or trier of fact, prohibiting summary judgment. The Court’s concern about the priority of transplants over research seems a bit off here given need, but current lack of demand for brain transplants.
On the other hand, it would be a stretch to assume that the legislature contemplated that undesignated gifts could be used for medical research or educational purposes even where a need for transplants exist. If SMRI or any other nonhospital wishes to increase donations, they must obtain a specific designation from the donor or the family of the deceased or a donation from a hospital.
The Court noted that Washington has not adopted the Tortious Interference With A Dead Body standard set forth in the Restatement (Second) of Torts Sec. 868,, which creates a negligence standard of conduct when dealing with a dead body, but Washington does recognize the common law standard of willful misuse of a dead body which requires intentional misconduct. The Court indicated that the plaintiffs successfully pled the common law standard in their pleadings, which are now subject to proof in court. That action is based, not on a property interest in the body, but an interest in the proper treatment of the body. The court acknowledged that the parameter of misuse are vague, but described it as misuse “ in such a manner as to cause the relatives or persons charged with a decent sepulture to naturally suffer mental anguish.” The court noted that the tort was usually related to mutilation of some kind of the body, but that proper burial equated to mutilation. The Court noted that although the medical examiner had authority to remove body parts during an autopsy he had no authority to give them away.
However, such authority does not imply that the medical examiner has authority to retain the brain and merely return a veritable shell of the skull to the family for burial, absent some compelling reason for further examination. Here the medical examiner found no abnormality in the brain and gave it to SMRI for its own private research. These facts clearly support an action for mental suffering based on the alleged misuse of a body.
Several years ago the Boston Bar published a number of deposition and trial excerpts, including one where a lawyer was examining a coroner and trying to establish that the deceased might have been alive during the autopsy. When asked how he could be sure the corpse was dead, the coroner replied, “because his brain was in a jar on my desk.” Hope he wasn’t planning on keeping it or that he had a more comprehensive release. When the lawyer in Boston still persisted in arguing that the corpse might still be alive, the doctor finally conceded that it was possible that he might be “out practicing law somewhere.”