Persons Who Request Autopsy Permission

Typically, clinical residents or staff physicians will ask the next of kin to authorize an autopsy. In some institutions, specially trained technicians from the autopsy service or transplant-service coordinators assume this task (7). Although autopsy permission usually must be requested at what appears to be the most inappropriate time for the next of kin, a tactful explanation of the benefits for the family of the deceased and for other patients will usually be successful in securing permission. In institutions without such persons, a physician should seek permission for autopsy.

WHEN IS AN AUTOPSY INDICATED? Ideally, autopsy permission should be obtained in all deaths because: 1) for reliable data analysis, number of cases should be large and the selection as random as possible; and 2) the most interesting and important findings may be totally unexpected and thus are often missed if authorization is requested only for defined groups of deceased patients. However, despite these compelling reasons to request autopsy permission in every case, financial, legal, and other constraints often cause institutions to seek autopsy permission only under specific circumstances. Thus, the College of American Pathologists (8) recommends including in such a list: 1) unknown or unanticipated complications; 2) unknown causes of death; 3) special concerns of the next of kin or the public; 4) deaths following diagnostic procedures and therapeutic interventions; 5) deaths of patients who have participated in clinical trials; 6) natural deaths that were under the jurisdiction of the medical examiner or some equivalent official who then decided not to do the autopsy; 7) deaths that may have resulted from environmental or occupational hazards; 8) deaths resulting from high-risk infectious and contagious diseases; 9) all obstetric deaths; 10) all neonatal and pediatric deaths; and 11) deaths in which it is believed that autopsy would disclose a known or suspected illness that may have a bearing on survivors or recipients of transplant organs. It should be noted that deaths in some of these examples may fall under the jurisdiction of the medical examiner.

PERSONS WHO MAY AUTHORIZE AUTOPSY The right to grant, restrict, or withhold authorization for an autopsy rests with the surviving spouse or, if there is no surviving spouse, the next of kin. In the absence of known kin, autopsy permission may often be granted by the person who has custody of the body. Although a dead human body is not property in the commercial sense and may not be bargained for, bartered, or sold, there is a right, protected by law, to possess the body for the purpose of burying it (9-11). Authorization of an autopsy should be documented on an appropriate form (Fig. 18-1).

Surviving Spouse The wishes of the surviving spouse clearly override those of the next of kin (10). However, divorce terminates the spouse's authority. Separated couples are considered legally married; a separated surviving spouse has the same right to claim the remains as does a cohabiting spouse. In other words, "separated" is a living arrangement, not a civil status.

Next of Kin The order of priority may or may not be specified by statute in any given state, either under autopsy law or under the funeral directing act or the probate act. The following order often applies:

1. Children of the deceased, if they are of age;

2. Grandchildren of the deceased, if they are of age;

3. Parents;

4. Brothers and sisters;

5. Cousins, nieces, nephews, grandparents, uncles, and aunts (local law should be consulted with regard to right to consent and priority). Of course, if the next of kin are that far removed in degree, competing claims would be unusual.

6. Friends or any person of legal age who assumes responsibility for the burial. The institution or person obtaining permission may ask for an affidavit stating the facts of the friendship or other relation, and stating that the person in question will assume the costs of the burial.

Persons Entitled by Statute Autopsy authorization in medicolegal cases and under related circumstances is discussed in the beginning of this chapter. In addition, statutes in some states provide that hospitals or physicians may give permission for an autopsy on a body if it is to be buried at public expense when no one is known who would be legally entitled to take custody of the body for burial (12). Autopsies may be done on such bodies or they may be surrendered to established medical or dental schools for scientific studies. In all these instances, reasonable efforts must be made over a specified period to communicate with relatives or friends who might want to assume custody of the body and the costs of burial. Most hospitals are reluctant to exercise this option and will refer such cases to the medical examiner.

Authorization by institutional officers may be contested unless the procedures outlined in the statute are followed carefully. Some state workmen's compensation laws provide statutory immunity for autopsies performed by order of the Industrial Commission. However, unless so provided by statute, courts have held that the economic interest of the insurance carrier involved in a workmen's compensation claim is not sufficient to override the refusal of the next of kin to grant autopsy permission (13). Another authority states that policies giving a life insurer the right to have an autopsy performed are valid in the absence of a statute to the contrary; and that refusal by the next of kin to permit an autopsy constitutes breach of policy (14).

In most states, a decision made by the person having the highest priority is binding and may not be overruled by persons with lower priority. If several persons have an equal degree of kinship, some statutes state that permission of only one such person is required (15). When acting on the authority of such a person, it would be wise to obtain a statement that this person is acting on behalf of all members of the group.

Permission for Postmortem Examination

Postmortem Examination: (Read to or have next of kin. guardian, conservator or health care agent or proxy read) study of the cause of death and the interrelations between the various organs of the body is useful in furthering medical science. Future generations may be helped by scientific discoveries made from postmortem examinations. An examination will not delay funeral arrangements or cause additional expenses to the family.

Marital Status (circle correct status): Married Divorced Widowed Never married

~ Postmortem examination is authorized by advance directive dated:_

(But if next of Kin. guardian, conservator or health care agent or proxy dedine postmortem examination, it must be documented below.)

n Permission is granted for postmortem examination on the remains of the deceased, including removal and retention of such organs or body parts and organ/tissue as may be used for appropriate diagnostic, educational, and scientific purposes (subject to restrictions listed below).

Signature of relative or guardian Relationship to deceased Date

ZZ Permission granted by telephone recording _ __________

Name of family member contacted

□ Permission refused

If permission is refused or not requested, (e.g.. medical contraindication, family refused, coroner case, other)

Signature of physician or health car» professional requesting permission Date Letter regarding autopsy results to be sent to: Name____


Fig. 18-1. Mayo Clinic Autopsy Authorization Form. This form is part of a larger document that also contains: 1) the clinician's summary of the clinical course; 2) check boxes to indicate the manner of death—for example, "natural" or "suicide"; 3) a statement that federal law requires all deaths to be reported to a donation agency and how to contact such an agency; 4) provisions concerning funeral arrangements; and 5) detailed instructions for proper completion of the document.

Permission From Decedent In many states, a person may authorize an autopsy on himself or herself but in some of these states, co-consent of the surviving spouse is required. Persons may, under the Uniform Anatomical Gift Act, donate their remains to an institution for the sole purpose of performing an autopsy (16). In the absence of state law permitting kin to override such a consent, the permission is binding on the surviving kin. However, we would recommend not to rely on such a permission in the face of objections from the next of kin who are claiming the remains.

CUSTODY ISSUES In general, it seems prudent to delay an autopsy whenever the right to custody of a body seems questionable and a risk of litigation exists. In the authors' experience, custody issues sort themselves out with time. Commonly, the claimant with the best legal claim lacks funds to bury the body and yields to a claimant with lower priority but greater financial resources. Unfortunately, such delays decrease the likelihood that permission for an autopsy can be obtained.

PERMISSION FOR SPECIAL PROCEDURES Authorization for an autopsy without specified restrictions is given with the understanding that the autopsy will be carried out in the usual manner—that is, the chest and abdomen may be exam ined and the brain and the neck organs may be removed. For any procedures requiring additional incisions, particularly of the face, neck, or hands (see Chapter 1), or that may interfere with proper reconstruction, such as total removal of the spinal column (see Chapter 6), it seems prudent to secure a special permission specifying the nature of the intended maneuver. This also holds true for removal of the eyes (see Chapter 7). A medical examiner or coroner who intends to perform these extended procedures must be sure that they serve the public interest and are not conducted solely for research or educational purposes.

AUTOPSY TECHNIQUES AND THE WORK OF THE FUNERAL DIRECTOR In order to maintain good professional relationships, extended autopsy procedures should be discussed with the funeral director first and every effort should be made to avoid interfering with the embalming. Funeral directors who understand and support the objectives of the autopsy may be expected to make their skills available when defects from extended autopsies must be reconstructed or when an occasional technical mishap must be repaired. Such goodwill requires that prosectors help the funeral director by identifying the vessels needed for arterial embalming. As described in Chapter 1, this can be accomplished by placing clearly visible ligatures around the carotid, axillary, and femoral arteries. If it is necessary to remove these arteries for examination or if there is a risk that they might be damaged during dissection on an extremity, the dissection procedure should be done in the funeral home, after embalming. Proper procedures for removal of the brain, dissection at the base of the skull, and removal of the eyes are described in Chapters 6 and 7, respectively. It is obvious that technical mishaps in the head area are particularly distressing. Finally, prosectors should be reminded to make complete slices through liver, lungs, and other solid organs so that slices are not connected by narrow bridges that can break and cause specimens to drop and spatter.

In areas with vigorous organ- and tissue-procurement agencies, complaints by funeral directors related to organ donation generally are limited to genuine grievances. Preparing a body for viewing after harvesting of long bones is considered more challenging than preparing a body that has been autopsied.

RESTRICTED AUTHORIZATION FOR AUTOPSY The place, manner, and extent of the autopsy may be restricted, for any reason, by the person who has the right to refuse an autopsy (17). Restrictions regarding the place of autopsy generally are intended to secure privacy which is discussed in the next section. The extent of the autopsy may be restricted to the abdominal or chest cavity, to exploration through an operative incision, or to inspection of organs without permission to remove samples for histologic study, to name only a few examples. Whether an autopsy should be done at all under such circumstances must be carefully considered by the pathologist because restricted examinations may lead to highly misleading results—for example, if potentially fatal coronary artery disease is found but a ruptured berry aneurysm is not detected because no permission had been obtained to inspect the cranial cavity.

WHO MAY WATCH AN AUTOPSY? Privacy issues must be considered if persons other than physicians are allowed to view an autopsy. Policies in this regard vary widely. In some institutions, only physicians and medical students are allowed to view autopsies because of unwelcome experiences with curiosity seekers and the resulting gossip. Others consider the educational value worthwhile and will admit nurses, law enforcement officers, or other persons who have a plausible professional relationship. Such sessions should be scheduled and the professional relationships of all attendees should be scrutinized in each instances. A compromise between the opposing views in this matter is to admit nurses and other qualified persons in the medical field to organ reviews rather than the autopsy itself.

UNAUTHORIZED AUTOPSIES AND INSURANCE ISSUES The performance of an unauthorized autopsy or the violation of an autopsy restriction may be construed as mutilation of the dead body. The survivors may claim that this has caused them mental anguish (18). Damages are collectible without proof of physical injury to the claimant. The proper party claimant, and the person to recover for the mutilation of the dead body, generally would be the one who had rightful custody of the body and therefore had the right to restrict or withhold authorization for the autopsy.

Many insurance policies providing indemnity of accidental death contain clauses that give the insurer the right to demand an autopsy. However, as mentioned in the context of workmen's compensation claims, the economic interest of the insurance carrier does not override the right of the surviving spouse or the next of kin to control the disposition of the body (13). The pathologist should insist on proper authorization from the next of kin. In many instances, the cases can be referred to the medical examiner or coroner because almost all medical examiner enabling statutes include deaths by accident.

RETENTION OF ORGANS AND TISSUES FOR STUDY Temporary removal of organs and tissues for histologic study is accepted as a normal part of the autopsy (13). It appears reasonable to include here related procedures such as organ angiography. Permanent retention of entire organs may not be contemplated by the next of kin and thus, the authorization that has been obtained should be broad enough to permit the procedure. Most permission forms used by hospitals have a specific clause that grants permission to retain tissues for the purposes of education and research. In the absence of such a clause, the organs should be returned to the body; permanent retention of organs without permission is actionable (19). After autopsies performed pursuant to statute, tissues may only be retained if this is in the public interest—for example, for cause of death determination, for identification purposes, and as evidence for testing by defense experts.

AUTOPSY CONSENT FORM Permission forms must be consistent with local law and should be reviewed or developed with counsel. Inclusion of the following provisions has been recommended (20):

1. The adjective "complete" modifying the word autopsy to establish consent for procedures not specifically excluded.

2. The nature and number of attendees to be left to the discretion of the physician.

3. The discretion to retain organs and tissues for study or research and to dispose of them in an appropriate and lawful way.

4. A section affording the opportunity to restrict the autopsy or add special instructions.

5. A statement that the grantor of consent has been afforded the opportunity to ask questions, and that the questions have been answered satisfactorily.

6. Name, address, and signature of grantor of consent, date of signature, and relationship to decedent.

7. Signatures of the person obtaining the consent and of a witness.

8. Other provisions to meet the requirements of local statutes.

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