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State Supreme Court hears case about body parts after autopsy

The Ohio Supreme Court heard arguments Wednesday in a case challenging how coroners handle body parts left over from an autopsy. It's common practice for coroners to keep a brain or other organs for testing and return the rest of the body to the family for burial or cremation. But some people want coroners to give families a chance to get the organs back for burial.

When a coroner takes samples of organs during an autopsy those organs are usually placed in a plastic bag and put back in the body for burial - except for the brain. Because the brain is gelatinous it has to be hardened to obtain a specimen. That can take a couple of weeks. By that time the body has usually been returned to the next of kin for burial or cremation. Many families have no idea the body is missing the brain. And according to Ohio law that's OK. The General Assembly said in 2006 that any organ removed and retained for examination is considered medical waste at the end of the autopsy.

But many Ohio families oppose the practice of just disposing of the organs. They've filed a class action suit saying they would have liked to give the organs a proper burial. Some of the cases date back to 1991.

Patrick Perotti represents the families. Perotti told state Supreme Court justices that coroners should notify family members that organs will be removed and give families a chance to claim it before they are discarded.

"By a simple one page form that says, we are going to be retaining this organ when we give you the body back. If you want it when you have buried your loved one, let us know, then of course there's a thing called an organ casket and if the person says it's my religious belief that I want to bury all parts of the body they have that choice," Perotti said.

But Mark Landes, an attorney representing Clairmont County in the suit, told justices that if coroners have to give notice to the next of kin the quality of the autopsies could be in jeopardy because examiners would be more reluctant to remove and test brain tissue.

"We don't do as good a job. There's a reluctance if we're going to have to do that to just not take that sample," Landes said.

But Justice Paul E. Pfeifer called that a lame excuse.

"That just seems like a totally lame excuse. We won't do our job if we have to give notice after we're done? I'm describing how the practice has been. Well they can change their practice," Pfeifer said.

There was also discussion about what would be considered a body part. Chief Justice Thomas Moyer even said it would be difficult to write an opinion that would make sense. But Perotti said the justices can write a clear ruling.

"So when they say well, what about the epithelial cells? What about the blood? What about the gases? What about the fluids? Well, you don't have those any more. Those are destroyed. Those are gone. Take the people who say, why don't you give the blood back? You don't keep the blood. You take the blood out and put in formaldehyde, so you don't have that anymore. But the other stuff that's left over, you can easily give that back," Perotti said.

Even if the Ohio Supreme Court decides the family has a right to be notified the case would move to Federal Court for a final ruling. Coroners argued if that happens, they would be tied up in litigation for months.