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Family sues after son is buried without brain

/ Source: The Associated Press

During an autopsy, the Hamilton County coroner removed Christopher Albrecht's brain and never put it back — a common practice for coroners.

But when Albrecht's parents learned years later that they had buried him without a brain, they filed a lawsuit that raises ethical, moral and religious questions about the treatment of one's body after death.

The case, to be argued Wednesday before the Ohio Supreme Court, has drawn international attention for its ramifications to coroners, crime investigators, EMTs, funeral directors and followers of religions that espouse the importance of burying the whole body.

The Albrechts argue that they had a right under the Ohio Constitution to their son's brain, and a right under the U.S. Constitution to reclaim the brain before it was destroyed. The lawsuit is a class action suit against coroners and commissioners in 87 of Ohio's 88 counties covering cases dating to 1991.

Under Ohio law, brains, hearts and other body parts and fluids removed during an autopsy are classified as medical waste, which generally means they are incinerated after use.

During oral arguments Wednesday, justices appeared skeptical of both sides — with Justice Paul Pfeifer at one point calling "totally lame" a lawyer's argument that coroners would be reticent to do thorough autopsies if property rights were involved.

"Plaintiffs would have you believe that you can do an autopsy and still return all of the body," replied attorney Mark Landes. "That's a definitional impossibility."

Justice Maureen O'Connor, a former county prosecutor, suggested to attorneys for the family that allowing their legal argument to prevail would have a sweeping impact on the entire medical profession.

"What this case really comes down to is, for the convenience of the government, are we Ohioans, we humans, supposed to give up our most basic rights to the human remains of our loved ones?" John Metz, an attorney who brought the Albrechts' suit, said in an interview. "I am absolutely amazed to have to be standing in front of the highest court in our state to defend against such a socialist view."

Defenders of the coroners, including the Ohio State Coroners Association, Ohio State Medical Association and the National Association of Medical Examiners, contend that establishing property rights for families to the organs, tissue, blood and other fluids extracted during an autopsy could jeopardize timely autopsies and jeopardize criminal evidence.

"The longer you wait to perform an autopsy, the more evidence and information you lose," said Elizabeth Mason, an assistant Clermont County prosecutor leading the county coroners' defense.

Exam often not done by burial time

Brains are particularly difficult to reunite with a body in time for burial, because it takes three to 14 days to prepare them for examination.

Mason anticipates an onslaught of litigation against counties if the Albrechts prevail. Relatives are often upset about autopsies taking place, and may begin negotiating with coroners about what to do with body parts. But relatives may not always agree with each other.

"I call that the 'Chicken-Little-Sky-Is-Falling' defense," Metz said. "We recognize you, as the state, have a right to our loved one's body to do an autopsy. But once you're done, all you have to do is pick up the phone and talk to these people, and say, 'I'm done with your child's heart.'"

Metz and co-counsel Patrick Perotti have been taken to task before the court for making a legal question too emotional. Perotti's briefs have contained references to Achilles' slaying of Hector in The Iliad, the drowning of Shakespeare's Ophelia and poet Walt Whitman's "I Sing The Body Electric."

Lawyers for the coroners at one point tried and failed to get one particularly verbose submission — which traced the history of death from ancient to modern times — stricken from the record.

"We don't dispute that it is a cultural norm for us to accord that kind of respect for our dead," Mason said. "But that doesn't mean that when they went out to get Hector's body back, they scraped up every drop of blood to make sure they got everything."

Material from body often lost, coroners say

In a brief, the Medical Examiners Association said material from a dead body is almost always lost. Bodies lose fluids at accident scenes and parts of some bodies are never found, the group said.

It argued that material taken by coroners is being singled out unfairly in this case.

Christopher Albrecht, 30, died in December 2001 when he suddenly plunged his vehicle into a pond.

The coroner determined that an epileptic seizure prompted his accident, but that his death was caused by drowning.

According to the autopsy, a portion of his brain had been removed during his life as part of a surgical procedure related to his epilepsy.