When a loved member of the family has died and where the body is mishandled or damaged, the family can have a claim for the mishandling the corpse. The law says that the nearest family members can sue for emotional injury and outrage if the dead body is mistreated. The nature of claim is the emotional injury to the family member rather than the damage or mistreatment suffered by the dead person.
The law recognizes that the dead family member and the family are entitled to proper handling of the dead body. Such includes a proper funeral and burial in accordance with the religious beliefs of the family. The law holds this right to be so elemental that the family member need not show actual or bodily injury. In other words, the family member need not show that he or she sustained either a bodily injury or psychic injury and that he treated with physicians.
Examples of Mishandled Bodies
Here are some examples:
- the City or hospital perform an unnecessary autopsy; many religious groups prohibit autopsies;
- the wrong body is picked-up by the funeral home;
- the wrong body is buried;
- the body is lost;
- the body is buried in the wrong plot where it was destined for family plot or crypt;
- the body is destroyed or damaged by either the hospital or the funeral home; for example, one of our attorneys worked on a case where the neck of the deceased was broken so that it could squeezed to fit into a standard size coffin; the body was in an unpresentable and distorted condition for the open viewing; and
- the wrong body is displayed at the wake.
The Case of Failing to Make Reasonable Efforts to Contact the Next of Kin
We had a case involving the City’s failure to make reasonable efforts to contact the next of kin.
The deceased, a bachelor postal worker, blacked-out on Thanksgiving Day in a Pennsylvania Station mens room. He worked across the street at the General Post Office. He had a heart attack, and EMS workers were unable to revive him. Amtrak police reported, and the police report noted that he had Post Office I.D. This was also noted in the EMS records. The decedent was taken to Bellevue Hospital where he was pronounced dead. Bellevue inventoried his possessions which included his Post Office I.D. His body was transferred across the street to the Office of the Chief Medical Examiner which did an autopsy the next day. The cause of death was heart attack.
The deceased’s sole survivor was his sister. She learned of the death of her brother about twenty days later when the Post Office police called her to inquire about her brother. He had not reported to work for about 20 days. The sister made some frantic calls, and she learned that her brother was at the Medical Examiner. The sister scheduled a Jewish funeral and burial two days later.
The sister, an observant Jew, suffered emotional injury because her brother was not buried for 20 days. Jewish religious law mandates that a dead person be buried immediately. It is not unusual for a Jewish person who dies on Thursday to be buried on Friday before the beginning of the sabbath on Friday evening because burials on Saturday are prohibited. Jewish law obligate that the family do a proper and prompt burial. Once the body is buried properly, the family has fulfilled its obligations to the dead person. Also, Jewish law prohibit autopsy, and an autopsy was unnecessary in this case since this was not a homicide or suspicious death.
If either the Police, Bellevue Hospital, or the Medical Examiner had bothered to notify the Post Office, the sister would be advised immediately because the sister was listed on his employer’s records as the next of kin. Her brother would not have been in storage at the Medical Examiner for 20 days.
We claimed that the City failed to take the reasonable and necessary step of notifying the U.S. Post Office. The decedent died across the street from the Post Office’s main office in Manhattan which has thousands of employees, and it would have been reasonable to report the death immediately to the Post Office. The Post Office would have notified the sister much earlier. Instead, the City failed to take this reasonable step.
The City recognized that it was negligent, and the case was settled.
The Case of the Misdelivered Body
A colleague and friend, Richard Villar, is prosecuting a case where the body was misdelivered due to the airline’s mistake.
The family arranged for the burial in their native Ecuador. The airline mistakenly sent the body to Guatemala. An airline employee negligently typed-in GUA for Guatemala rather than the correct code, GYE for Guayaquil. Also the body decomposed in Guatemala City airport. The family had to cancel plans for a three day wake.
The law fairly recognizes the family is entitled to have a loved one’s body handled with full dignity and respect.
If your family has suffered this misfortune after the death of a loved one, please feel free to call me to discuss it at 800-581-1434.
Mark E. Seitelman, 9/9/08, www.seitelman.com.