Huge Lawsuit Could Change Handling of the Dead

By Robert Barnes
Washington Post Staff Writer
Monday, January 28, 2008

It was years after Mark and Diane Albrecht laid their son Christopher to rest that they discovered they had not buried all of him.

His brain had been removed for tests by an Ohio county coroner trying to determine why the seemingly healthy 30-year-old man had died. It was never returned.

The Albrechts' discovery that they had buried their son without his brain has led to a federal class-action suit that could cost local governments millions of dollars, force changes in the way medical examiners perform their jobs and establish new rights for the next of kin.

The suit argues that the next of kin, not the state, should make decisions on how to dispose of organs no longer needed for testing, and that denial of such a right violates the Constitution's promise of due process. The federal lawsuit names 87 of Ohio's 88 counties; the other, Hamilton County, which encompasses Cincinnati, has already settled with families for $6 million.

Beyond that, the case has presented two separate courts with existential questions about death and burial rites, religion and grief, and the interests that loved ones have in the remains of the departed.

The social commentary comes from likely sources, such as the Catholic League, and unlikely ones, such as the National Association of Medical Examiners.

"Human beings relate to the personhood and soul of other living human beings, but these qualities are extinguished at death," said the medical examiners' brief. "The real family interest is in the 'soul' of the deceased, if it continues in an afterlife, or in the memory of the 'soul', rather than to the dead carcass."

The "dead carcass" line has not played well with those who urge the courts to find for the families.

Their supporters have drawn on Walt Whitman ("I Sing the Body Electric"), "The Iliad," ancient burial traditions, and the more modern searches for the remains of soldiers killed in Vietnam or the recovery of bits of the victims of the Sept. 11, 2001, terrorist attacks.

The Catholic League said in its court brief that respect for all parts of the dead "motivates us to spend hundreds of thousands of dollars to search disaster sites, fires, and plane crashes, not only to recover intact bodies but individual parts."

The Albrechts reached a more concise conclusion: "The right to disposition of the loved one's dead body includes all of its parts."

The couple, who have declined media interview requests, learned of their son's missing brain from a lawyer investigating other cases involving the Hamilton County coroner. They had not objected to an autopsy to learn the cause of their son's death after his car swerved into a retention pond in December 2001, and do not contend that the coroner improperly conducted the autopsy.

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