Issue: May 2017
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The Body as Proof: Litigation Risks Involving Autopsies

Introduction

Autopsy Liability Risks

The national autopsy rate in the U.S. has fallen to about 8.5% of the nearly 7,000 deaths that occur each day, a rate that a research group working for the Department of Justice called “miserably low.” Because of the decline in the rate of autopsies performed, cause-of-death determinations for a number of important disease conditions and for deaths of persons over age 65 are now primarily based on diagnoses and examinations, not on autopsies.

 

Although autopsies are considered crucial in determining the cause of death for a deceased person, particularly in cases of homicide, the report of the Scientific Working Group for Medicolegal Death Investigation noted a critical shortage of experts trained to conduct autopsies and death investigations. In addition to a shortage of forensic pathologists, the study also noted that “many hospitals have basically abandoned the use of … autopsies” as a result of changes in hospital accreditation standards and reduced funding for autopsies.

 

Despite the decline in autopsy rates, hundreds of thousands of autopsies are still performed each year, and some of these lead to litigation. Attorneys, physicians, insurers, employers, and other potential parties to litigation should be aware of the types of lawsuits and other liability issues that may arise in connection with injuries related to autopsies.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for an action involving an injury in connection with an autopsy? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice or negligence be avoided for an injury related to an autopsy? And, what is a potential strategy for the coroner, medical examiner, or other physician or medical professional to employ?

Insurers:

Can an insurance company avoid liability related to an autopsy? And, what is a potential strategy for the insurer to employ? 

Employers:

Can an employer be subject to liability for an autopsy performed in connection with a workers’ compensation claim? And, what is a potential strategy for the employer to use?


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a coroner or medical examiner’s liability for a negligent autopsy resulting in the plaintiff’s emotional distress. 

Physicians:

Presented is a checklist of items a physician, such as a medical examiner, must consider when defending against claims of malpractice or negligence involving an autopsy.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of negligence in the performance of an autopsy by a medical examiner.

Employers:

Use this checklist to determine if an employee injury resulting in an autopsy could be considered “work related” and occurred “in the course of the employment.” 

Expert Analysis

What Are the Ethical and Legal Concerns Regarding Molecular Autopsies?

Amy L. McGuire, JD, PhD

Why Is the Forensic Autopsy Important to Attorneys and Others?

Samuel D. Hodge, Jr., JD

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial. 


Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving autopsies?



Medical Examples

Autopsy

This section provides detailed medical information on autopsies, including the terminology used; the types of autopsies and the reasons for autopsies; who performs the autopsy; notification of death and authorization or consent; autopsy manuals and protocols; biosafety controls; autopsy procedures; identification of corpse; determination of cause, manner, time, and mechanism of death; considerations regarding the handling of the corpse, religious beliefs, and photographs; death certification; organ and tissue retention or donation; autopsy report and morgue recordkeeping; and body transfer or disposition protocols.



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on autopsies.


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The Body as Proof: Litigation Risks Involving Autopsies

Table of Contents
Introduction

Expert Analysis
   Amy L. McGuire, JD, PhD
   Samuel D. Hodge, Jr., JD

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Autopsy

Law and Medicine Resources