Mishandled Fetal Remains: Court Looks At Family’s Rights, Hospital’s Liability.
Legal Eagle Eye Newsletter for the Nursing Profession
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Going back centuries the common law has recognized a legal cause of action for what is called tortuous interference with the right to possess a corpse. Parents, family members and other next of kin have the legal right to possession and custody of a deceased loved one’s remains for the purposes of funeral, burial or cremation.
Any interference with that right by withholding, mutilating or otherwise disturbing the body can be the basis for a lawsuit. Damages in the lawsuit can include compensation for mental suffering and emotional distress.
To recover damages in this context it is not necessary for the aggrieved family member to suffer physical harm or even to obtain treatment or counseling for emotional issues. The law presumes that genuine mental or emotional distress will follow from mishandling of the remains of a loved one. APPELLATE COURT OF ILLINOIS May 30, 2018
At a prenatal medical appointment a fetal heartbeat could not be obtained. The mother was admitted to the hospital, labor was induced and a stillborn girl was delivered who was believed to be at twenty-plus weeks gestation.
The mother met with the hospital chaplain and later testified the chaplain promised her the hospital would provide a burial within one week. A nurse, on the other hand, testified the mother consented to mass burial with similar fetal remains at a future time that was not specified. The mother signed a standard consent form allowing the hospital to dispose of the remains. It was a standard form required by state law for any fetal demise before twenty weeks. The exact gestational age in this case was apparently not known.
A year later while following up at the hospital the parents found out the remains were still mixed in in a barrel of medical waste in a cooler in the hospital morgue. The parents sued.
The Appellate Court of Illinois explained that intentional, reckless or negligent removal, withholding or mutilation of the remains of a dead person, or action which prevents proper interment or cremation, is grounds for legal liability to the family member or members who have the legal right to dispose of the body. That being said, it was a critical flaw in the parents’ case that the lawyer did not appeal the lower court’s dismissal of their allegations of mistreatment of the corpse.
Technically the Appellate Court had no jurisdiction to rule in the parents’ favor on what would have been a valid and available legal remedy against the hospital. The Appellate Court also ruled against the parents on the issue of the consent form. The form gave the hospital consent to deal with the remains, specifically to bury the remains if the hospital so chose, but the consent form was not a binding contract between the parents and the hospital that obligated the hospital to do so. Vassell v. Hospital, __ N.E. 3d __, 2018 WL 2448832 (Ill. App., May 30, 2018).
More references from nursinglaw.com
http://www.nursinglaw.com/fetal-remains-parents-sue-hospital.pdf
http://www.nursinglaw.com/fetal-demise-nursing-negligence.pdf
http://www.nursinglaw.com/miscarriage.htm
http://www.nursinglaw.com/miscarriage-hospital.pdf