Top court to weigh who owns organs

Most bodies are sent to the funeral home before tests on vital organs are finished.

Counties across Ohio may have to change autopsy procedures and face substantial legal costs if the state’s high court rules that coroners cannot keep organs for ongoing autopsy testing when the bodies are released to family members.

The question about who has the right to a deceased person’s remains arose after a family from Clermont County in southwest Ohio discovered their son’s brain wasn’t buried with his body but was instead cremated after a coroner’s examination.

Christopher Albrecht, 30, died in 2001 after he had a seizure and drove into a retention pond in Clermont County and drowned. His parents sued nearly five years after the death, claiming their constitutional property rights were violated when a coroner didn’t return the brain.

U.S. District Judge Susan Dlott, at the urging of lawyers representing coroners, has asked the Ohio Supreme Court to decide whether Ohio law gives the next-of-kin property interest regarding autopsied organs.

“The only interest our clients are asserting is, when you’re all done and don’t need the brain, we have the right to decide what to do with it,” said Patrick Perotti, one of the Albrecht family’s lawyers.

The state Supreme Court accepted the case for review this summer, and justices have not indicated when they will rule or if they will hear oral arguments before making a decision, said spokesman Chris Davey.

When a brain is kept for testing, it is stored in a protective solution. Most bodies are sent to funeral homes much sooner than brain studies are completed.

The same issue could come up regarding other body parts, such as hearts and other organs.

Coroners sometimes think it’s best not to talk to families about such matters, said Mark Landes, a Columbus attorney representing 67 county coroners.

“To equate temporarily taking a brain to taking someone’s property is just fundamentally wrong,” said David Lambert, head of the Cuyahoga County prosecutor’s civil division. “It’s forensic examination of evidence.”

Cuyahoga County performed nearly 6,000 autopsies from 1991 through 2006 in which organs were retained after the body was released for burial.

“We could have coroners telling people you’re going to have to postpone the burial for two to three weeks while they wait,” Lambert said. “Or, the other scenario is we send the body to the undertaker, it’s buried and then we give them the brain, they exhume the body and stick the brain back in the abdominal cavity.”

Ohio law requires autopsies to be performed on sudden, suspicious or violent deaths, including automobile or workplace accidents. State law also requires autopsies of all children younger than 2.

“We don’t put the body back like a puzzle,” said Elizabeth Mason, assistant county prosecutor in Clermont County.

In 2005, Hamilton County settled a similar lawsuit agreeing to pay $6 million to about 1,000 families whose relatives were autopsied between 1991 and 2002 and an organ, usually a brain or a heart, was kept by the coroner for determining cause of death.

Hamilton County, which neighbors Clermont County, now notifies families when a body part is removed and offers the option of having it returned for burial. Other counties, such as Cuyahoga in Northeast Ohio, also notify families.