While recovery for negligent infliction of emotional distress is limited in New York, one area in which such claims have long been permitted involves the interference with the right to the body of a deceased loved one. This right, which exists at common law, is known as the right of sepulcher. A surprising number of actions have been brought against hospitals based upon violations of that right. This column examines that unique cause of action.
The Court of Appeals first recognized the right to recover for emotional injuries resulting from interference with the right to the body of a family member in Darcy v. Presbyterian Hosp. in City of N.Y., 202 N.Y. 259 (1911). The plaintiff’s decedent died a week after he was admitted to the defendant hospital. The plaintiff, who was his mother and next of kin, asked for his body and sent an undertaker to retrieve it. The hospital refused and instead notified the coroner, who performed an autopsy. The plaintiff brought an action against the hospital seeking recovery for her emotional distress from being deprived of her of the right to the possession of her son’s body for burial. The complaint was dismissed at trial on the ground that the facts did not state a cause of action. The Court of Appeals reversed, adopting the analysis of the Minnesota Supreme Court in Larson v. Chase, 47 Minn. 307 (1891), which, after reviewing the law from the United States and England, concluded that “while no action can be maintained by the executor or administrator upon the theory of any property right in a decedent’s body, the right to the possession of a dead body for the purpose of preservation and burial belongs to the surviving husband or wife or next of kin, in the absence of any testamentary disposition,” and that “this right the law will recognize and protect from any unlawful mutilation of remains by awarding damages for injury to the feelings and mental suffering resulting from the wrongful acts, although no pecuniary damage is alleged or proved.” With regard to the defendant’s assertion that it had reasonable ground to suspect that the death was occasioned by criminal means, the court indicated it could raise such a defense at trial.
Decades later, in holding in Johnson v. State of New York, 37 N.Y.2d 378 (1975), that the plaintiff could recover for her emotional distress from being erroneously informed by a hospital that her mother had died, the court cited as precedent that recovery is permitted for the emotional harm from the “negligent mishandling of a corpse.” It commented that while such recovery has “ostensibly been grounded on a violation of the relative’s quasi-property right in the body, … such a ‘property right’ is little more than a fiction; in reality the personal feelings of the survivors are being protected.”
The following year, in Lando v. State of New York, 39 N.Y.2d 803 (1976), where the claimant’s daughter, a mentally disabled patient, disappeared and was found dead 11 days later on the hospital grounds in an advanced state of decomposition 50 feet away from the parking lot of the building in which she resided, the court held that the claimant was entitled to damages for his mental anguish from being “denied access to and control over the body” of his daughter during that 11-day period.
It should be noted that while this is a common law cause of action, multiple statutory provisions in Article 42 of the Public Health Law (PHL) dealing with the disposition of bodies, autopsies and dissection may come into play in these cases. One of those sections came into play in the Court of Appeals’ most recent discussion on the subject in Shipley v. City of New York, 25 N.Y.3d 645 (2015), which held that a medical examiner is not required to notify the next of kin that the decedent’s organs had been retained for further examination after an authorized autopsy. The 17-year-old decedent died in a car accident and his father consented to an autopsy. The brain was removed, placed in a labeled jar and kept in a cabinet for further testing, while the decedent’s body was returned to the family for the funeral. Two months later, several of the decedent’s classmates were on a field trip to the mortuary when they saw the jar with the decedent’s brain and reported it to his family. His parents brought suit, alleging that the medical examiner violated their common law right of sepulcher, as well as PHL §4215(1), which requires the return of the remains of a body after dissection. In addressing the right of sepulcher, the court observed:
The common-law right of sepulcher affords the deceased’s next of kin an “absolute right to the immediate possession of a decedent’s body for preservation and burial … , and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body.” The right itself “is less a quasi-property right and more the legal right of the surviving next of kin to find ‘solace and comfort’ in the ritual of burial.” Damages are limited to the emotional suffering, mental anguish and psychological injuries and physical consequences thereof experienced by the next of kin as a result of the interference with the right of sepulcher. (Citations and parenthetical quotations omitted.)
The court concluded that it would be an expansion of the medical examiner’s common law and statutory obligations to require him to turn over organs removed during an autopsy.
The portion of the above passage referring to the “solace and comfort” that the next of kin find in the ritual of burial, was quoting the First Department’s opinion in Melfi v. Mount Sinai Hosp., 64 A.D.3d 26 (1st Dept. 2009), which provides an extensive and illuminating history of the right of sepulcher. It also involved fairly remarkable facts.
The decedent, Leonard Melfi, was a playwright whose work was best known in the 1960s. On Oct. 28, 2011, he was living in a welfare hotel on the Upper West Side of Manhattan, when he collapsed and was brought by ambulance to Mt. Sinai Hospital. The ambulance call report had his address, date of birth, Social Security number, and listed a friend as next of kin with her phone number. Melfi had no wife or children. He had a brother in upstate New York, and a niece who lived outside the City and who had visited him a week earlier. He was diagnosed in the emergency room with congestive heart failure and atrial fibrillation. The opinion indicates that minimal treatment was given, and when he became unresponsive, no life-saving treatment was provided. Melfi died that evening. The death certificate prepared by the hospital had his name and age, but omitted other information contained in the ambulance report and the hospital registration form, including the friend’s name and number. While the ER doctor testified that he twice tried to call the friend, there was no record to that effect. Melfi’s body remained in the hospital morgue for 30 days, after which it was transferred to the City morgue at Bellevue Hospital. There was no record of any efforts to locate any next of kin while there, and his body was then sent to Nassau County Community College for use by students in embalming practice. On Dec. 20, 2001, his body was transferred to “Potter’s Field” and interred in a mass grave with 150 others. On Feb. 2, 2002, Melfi’s niece was informed of his death by the welfare hotel where he had been living. Her father, Melfi’s brother, contacted the friend who had been listed as next of kin, and she indicated she had not been contacted. In mid-February he learned that the body was buried in Potter’s Field. In April, the body was exhumed and identified by the brother, who also observed the incisions and holes from the embalming practice. Melfi was laid to rest in the family plot upstate later that month.
On May 2, 2002, a notice of claim was filed against the City and New York City Health & Hospitals Corporation (HHC), and on Oct. 21, 2002, a suit was brought against those defendants and Mt. Sinai, asserting claims for medical malpractice, wrongful death, loss of sepulcher, fraudulent concealment and punitive damages. The primary issue on appeal concerned the timeliness of the notice of claim. The Appellate Division found it timely, and the language quoted by the Court of Appeals in Shipley was pivotal to the reason why. Because the right of sepulcher is for the “solace and comfort” of the next of kin, the cause of action cannot accrue until they are aware:
Consequently, we find that a cause of action does not accrue until interference with the right directly impacts on the “solace and comfort” of the next of kin, that is, until interference causes mental anguish for the next of kin. Further, because the injury is emotional or mental, it is axiomatic that a plaintiff must be aware of the interference giving rise to his/her distress before he/she can actually experience distress.
The court provided further clarity, holding that “for a right of sepulcher claim to accrue (1) there must be interference with the next of kin’s immediate possession of decedent’s body and (2) the interference has caused mental anguish, which is generally presumed.” It explained that interference can arise by unauthorized autopsy, by disposing of the remains inadvertently, or by failure to notify next of kin of the death. The court further noted that while mental anguish is generally presumed, it “cannot be felt until the next of kin is aware of the interference with his/her right of possession of the loved one’s body for burial.”
The Melfi court found several Second Department decisions relied upon by the municipal defendants inapposite because they addressed the statute of limitations rather than notices of claim. See Cally v. New York Hosp. Medical Center of Queens, 14 A.D.3d 64 (2d Dept. 2005); Moore v. City of New York, 291 A.D.2d 386 (2d Dept. 2002); Jensen v. City of New York, 288 A.D.2d 346 (2d Dept. 2001). However, it indicated that if presented with the question it “may well” disagree with those decisions and find the violation of the right of sepulcher to be a continuing wrong.
A second issue addressed in Melfi was HHC’s assertion that it was entitled to dismissal of the loss of sepulcher claim because it had no duty under PHL §4211 to locate the next of kin before delivering the decedent’s body to the college. The court rejected that argument because the statute required it to make a “reasonable and diligent inquiry” into the location of a relative, and noted that “a jury could find that HHC conducted no inquiry at all, much less one that is reasonable and diligent.”
Notably, in Martin v. Ability Beyond Disability, 153 A.D.3d 695 (2d Dept. 2017), the Second Department recently found that PHL §4201, which deals with disposition of remains, imposes no requirement of a “diligent effort” to locate the family. The decedent lived in residential facilities his whole life after sustaining a severe brain injury as a child. A non-family member was appointed his legal guardian shortly after the accident, and remained so until his death 27 years later. His family had visited him only sporadically over the previous 20 years and they had no contact with the guardian. For six days after the decedent’s death the staff of the facility unsuccessfully attempted to locate the family members, after which the guardian consented to a funeral. Family members learned of the death two days later, his body was exhumed and a family burial was held later that month. The family then brought an action for interference with their right of sepulcher. The Appellate Division granted summary judgment dismissing the complaint. It noted that PHL §4201 gives a decedent’s surviving parents priority over a court-appointed guardian unless the parents are not “reasonably available.” Based upon legislative history, the court found that “reasonably available” does not require a “diligent effort” to locate them. Since the defendants’ actions concerning the decedent’s burial were reasonable and made in good faith, they complied with the statutory requirements and were not liable.
Several other Appellate Division decisions address the circumstances in which a loss of sepulcher cause of action may or may not lie. In Bambrick v. Booth Memorial Med. Ctr., 190 A.D.2d 646 (2d Dept. 1993), the plaintiff sued the hospital for performing an unauthorized autopsy on her deceased husband within 12 hours of his death. She asserted that she never consented to an autopsy, either verbally or in writing, and that she expressly refused a request for one when the hospital personnel notified her of the death. The hospital maintained that she had given verbal authorization over the telephone. The Appellate Division held that the plaintiff’s motion for partial summary judgment on the issue of liability should have been granted based upon PHL §4214(1), which prohibits any autopsy within 48 hours of death absent written consent.
In Plunkett v. NYU Downtown Hosp., 21 A.D.3d 1022 (2d Dept. 2005), the court held that the plaintiffs’ action seeking damages for the emotional injuries they sustained as a result of the delay in notifying them of their father’s death, thereby interfering with their right to his remains, was not precluded by the absence of medical evidence supporting their injuries. This is consistent with the observation in Melfi that the emotional injury is presumed.
With regard to claims premised upon delays in notifying the next of kin of the death, the Second Department, in Henderson v. Kingsbrook Jewish Medical Center, 91 A.D.3d 720 (2d Dept. 2012), reinstated a complaint where the plaintiffs alleged that the hospital failed to release the decedent’s body to their chosen funeral home for three days, stating that while the delay was not inordinate and may ultimately be shown to have been reasonable under the circumstances, the allegations stated a cause of action for violation of the right of sepulcher. Conversely, in Martinez v. Jewish Home and Hosp., 147 A.D.3d 415 (1st Dept. 2017), the same court recently held that there was no liability based on the right of sepulcher where the plaintiff conceded that the defendants promptly informed her of the decedent’s death, and made contact with her several times about retrieving his corpse, but she failed to do so.
One of the more interesting sepulcher decisions was that of the Second Department in Zhuangzi Li v. New York Hosp. Medical Center of Queens, 147 A.D.3d 1115 (2d Dept. 2017), where the plaintiffs, after being informed that genetic testing indicated their fetus was female and had a genetic defect incompatible with life, terminated the pregnancy. The plaintiff on whom the procedure was performed signed a consent for the burial, which authorized the hospital to “bury, or arrange for the burial of the baby.” The form provided options of having the burial done by a private undertaker, the City or a not-for-profit organization—she chose the City. Subsequent to the procedure, a nurse allegedly told the plaintiffs that the fetus was male, after which they requested an autopsy to confirm the accuracy of the previous genetic testing. However, the fetal remains could not be found for over two months, and was eventually located at the bottom of a large bin with limbs and other body parts. An autopsy was performed and confirmed that the fetus was female. The remains were given to the plaintiffs, who arranged for their disposal.
The plaintiffs sued the hospital claiming violation of the right of sepulcher and negligent infliction of emotional distress. The Appellate Division noted that damages are not recoverable for emotional distress from the failure to timely perform an autopsy on the fetus. However, it observed that the right of sepulcher applies to stillbirths, and that while the plaintiffs had relinquished their right to prompt possession of the remains by authorizing the hospital to arrange for the burial, they also alleged that the hospital violated their right of sepulcher by mishandling the fetal remains. The hospital nevertheless argued that under the State Health Code, a fetus of fewer than 20 weeks’ gestation is not a “body,” and the plaintiffs therefore could not recover for the mishandling of a body. The court rejected that argument, finding that even if a fetus must be 20 weeks’ gestation to be a body and even if this fetus did not qualify, the hospital “created a right of sepulcher where one might not otherwise exist by affirmatively representing to the plaintiffs that the fetus would receive a burial,” and since it thereby “created a reasonable expectation that the fetus would receive a burial, it was not free to mishandle the fetal remains.” It went on to hold that there were questions of fact as to whether the hospital was negligent in handling the fetal remains. Two judges dissented finding that the plaintiffs had relinquished their right to immediate possession of the fetus for burial.
The decisions addressing loss of sepulcher demonstrate a fairly broad array of circumstances which may support the cause of action. The value of these cases will naturally depend on the specific circumstances and the degree of emotional injury sustained by the family members. Long periods of anguish from not knowing of the whereabouts of a loved one can entail fairly serious emotional injury. The same is true of seeing a loved one’s body mutilated. Other violations of this right may have less significant consequences. Some fact patterns are so outrageous as to support punitive damages. See Plunkett v. NYU Downtown Hosp., 21 A.D.3d 1022 (2d Dept. 2005); Liendo v. Long Is. Jewish Med. Ctr., 273 A.D.2d 445 (2d Dept. 2000); Liberman v. Riverside Mem. Chapel, 225 A.D.2d 283 (1st Dept. 1996). When attorneys are approached by family members with such claims, the circumstances need to be carefully evaluated.
Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.