RAKOW v. STATE OF NEW YORK, #2007-018-588, Claim No. 107828
One of the five siblings successfully sues for the wrongful autopsy of father
pursuant to Public Health Law §§ 4210 and 4214. Hospital failed to
obtain her written consent before performing autopsy within 48 hours of
|MARY W. RAKOW
1 1.The Court has amended the caption sua sponte to reflect the State of
New York as the only proper defendant.
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
sponte to reflect the State of New York as the only proper defendant.
DIANE L. FITZPATRICK
MELVIN & MELVIN, PLLCBy: SUSAN E. OTTO, ESQUIRE
ANDREW M. CUOMO
Attorney General of the State of
By: MAUREEN A. MacPHERSON,
ESQUIREAssistant Attorney General
December 10, 2007
See also (multicaptioned
This claim is for damages as a result of an alleged unauthorized autopsy on
Claimant’s father, Wilfred W. Westerfeld. There are a few factual
discrepancies in the testimony and evidence presented.
Dr. Westerfeld taught for more than 30 years and was chairman of the
Bio-Chemistry Department at SUNY Upstate Medical University before he retired in
1978. His wife predeceased him ten years earlier on the same day, September 10,
1992. They had five children: Claimant, the eldest, who lives in Silver
Springs, Maryland; Margaret Davies, who lives in the Syracuse area; William
Westerfeld who lives in Rochester; Noel Spaid who lives in Del Mar, California;
and John Westerfeld who lives in Brunswick, Maryland. Approximately six years
before his death, Dr. Westerfeld had a stroke, and his daughter, Margaret, moved
into his home on Hunt Lane in Fayetteville, to assist him with his daily needs.
She testified that she did laundry, cooked and shopped for him, and she had his
power of attorney, so she paid the bills as well.
In the few weeks before he died, Dr. Westerfeld suffered another stroke and was
taken to the hospital; Claimant spent approximately three weeks before his death
visiting with her father. She had returned to Maryland for her employment when
her father passed away on September 10, 2002, at 8:50 p.m.
Margaret Davies testified that on that day she was on the telephone with her
sister, Noel, when the operator broke in and asked if she would free the line so
an emergency call from Upstate could be received. Before that call came in, a
friend of Margaret’s, who had been contacted by the hospital, called to
inform Margaret of her father’s passing and to offer her a ride to the
hospital. Margaret’s friend and her husband took Margaret to the
hospital later that night.
Margaret went to her father’s room and spoke with a nurse there. A
doctor carrying a clipboard came in, who was later identified as Alex Perez,
M.D. Margaret recalled that he asked her for permission to do an autopsy on her
father for educational purposes. Dr. Perez
that he was paged and sent to the
room because the family requested an autopsy. Dr. Perez felt, from what
Margaret told him, that Dr. Westerfeld was an educator and would have wanted an
educational autopsy. Margaret signed an Authorization for Post-Mortem
for educational purposes, without
limitations, on that evening and Dr. Perez witnessed it. Margaret’s
testimony was that she had no objection to an autopsy under these circumstances,
because her father was an educator and this would be in keeping with his
life’s work. Next to her signature on the consent form Margaret wrote,
“POA,” to reflect that she had his power of attorney during the
decedent’s last several years.
Margaret called Claimant and Noel when she returned home later that night to
tell them about their father’s passing. She or Claimant called their
brothers the next day. On the night of their father’s death, there was no
conversation among the sisters regarding the autopsy.
The next morning, Margaret received a call from Donald Jaeger, Technical
Director of Autopsy Services for SUNY Upstate Medical University asking for the
names and telephone numbers of her siblings so he could get their consent for
the autopsy as well. He asked her to let them all know that he would be calling
and if there was any objection she should contact him.
On September 11, 2002, Claimant went into work to prepare for the trip to
Syracuse and her father’s funeral. While there, she received a call from
her husband, Clarence “Ray” Rakow, who informed her that she
received a faxed consent form at their home for an autopsy to be performed on
her father. Claimant said she was surprised by this because an autopsy had
never been discussed. Clarence testified he told his wife that Margaret had
called to say that Donald Jaeger from University Hospital would be calling for
Claimant and sending her a consent form for the autopsy. Clarence testified at
trial that after speaking with Mr. Jaeger, he told Claimant that the consent
form must be signed in order for the autopsy to be completed.
Claimant returned home to pack and, as she was leaving, her husband handed her
the consent form and fax cover sheet Mr. Jaeger had sent. She took the papers,
said that she needed to think about it and would deal with them later. The
consent form was a copy of the one Margaret signed so it contained
Claimant testified that her husband had told her Margaret thought everyone
should consent, and if there was an objection, the person should contact
Margaret. Clarence did not testify to that. Claimant said she knew she
didn’t want her father to have an autopsy, but she was hesitant in
approaching Margaret about it because she thought Margaret was strongly in favor
of it. She arrived at Hunt Lane between 4:00 and 6:00 p.m. that evening. There
was no discussion of the autopsy that night and Claimant did nothing to contact
The next morning, Claimant and Margaret went to make funeral arrangements at
Fairchild & Meech Funeral Home. They were there about one and one-half
hours, then they ordered flowers and did some grocery shopping before returning
to Hunt Lane. After lunch, at approximately 3:00 or 3:30 p.m., Claimant
finally told Margaret that she didn’t want an autopsy performed. She
couldn’t explain why, it was visceral. Margaret said that was good enough
for her and Claimant should call Mr. Jaeger to advise him. Claimant testified
that she called and received Mr. Jaeger’s voicemail. She left a message
in which she claims she stated twice that she opposed the autopsy of her father.
The calling hours were scheduled for Sunday, September 15, 2002. Claimant was
standing by the open casket and felt that her father’s face didn’t
look right. She smoothed back his hair, as she had done while caring for him
after his stroke, and felt something rough on the back of his head. She
retrieved Margaret and had her touch the rough area too. They both thought they
were feeling stitches and were shocked. Claimant then spoke with the funeral
director, Mr. Meech, who confirmed their suspicion that an autopsy had been
performed. He repeated this to Margaret and Noel. Later, on the day of the
funeral or the next day, Noel called the hospital and was told that four out of
five siblings consented to the autopsy and that was sufficient. Noel, an
attorney, told Claimant that she may have a lawsuit against the hospital for
performing an unauthorized autopsy.
Claimant testified that as a result of her father undergoing an autopsy, she
has trouble falling asleep and staying asleep at night. She cries at
inappropriate times during the day for no apparent reason. When she recalls
spending time with her father, the vision of him on the autopsy table
“laid open” comes unbidden to her mind. She was extremely upset to
think that her wishes were ignored.
The State called Donald Jaeger as their witness. He described the procedure
used at Upstate for obtaining consent for an autopsy. It is usually the
treating physician who speaks with the family about a hospital
After a death in the hospital, Mr.
Jaeger is paged or notified and obtains the file from the admitting office.
Mr. Jaeger carries a pager and the number is provided on his office voicemail
In this case, Mr. Jaeger recalled that he was paged by the admitting office on
September 11, 2002, and advised of Dr. Westerfeld’s death, and that the
family was requesting an autopsy. Mr. Jaeger went to the admitting office and
obtained Dr. Westerfeld’s file and the consent form signed by Margaret so
he could arrange the autopsy. He learned that Margaret had other siblings, so
he contacted her that morning to get their names and telephone numbers, and he
suggested that she let her siblings know he would be contacting them and
determine whether or not they would have any objections to the autopsy. He said
he was trained to do this as a funeral director. His intention was to avoid any
turmoil for the family. He told Margaret that if there were any objections she
should let him know. The fax form he sent to each sibling gave his telephone
number and requested a call if there were any questions. No one called him with
questions. He said he would not have had the autopsy performed if he had
received any objections.
Mr. Jaeger’s file was submitted
evidence. The file contained the fax cover sheets he sent to the Westerfeld
children, the returned consent forms, and his personal notations among other
items. His notes contain a list of Margaret’s siblings with phone and fax
numbers. Noel and William had returned the signed consent forms and he noted
next to John’s name that he received verbal permission from him on
September 11, 2002. Next to Claimant’s information, he noted that he
received verbal permission from her on September 12, 2002. He could not recall
when he made the notation. He recalled getting a message from Claimant that
day, after the autopsy was completed, saying she had no objection to the
autopsy. He never spoke directly to Claimant.
Mr. Jaeger had the hospital compile his long distance telephone records for
September 10-12, 2002, which show the calls he made to the siblings. It shows
that he called Claimant’s home number on two occasions the morning of
September 12. Mr. Rakow testified that he was home that whole day and no one
called. Mr. Jaeger said he could not recall if an answering machine had picked
up his calls, nor could he recall how many times the phone rang.
That same morning, Mr. Jaeger made arrangements for Dr. Westerfeld’s body
to be transported to the Medical Examiner’s office by a funeral director
who contracts with the hospital to handle the transportation. The funeral home
handling the services for the deceased obtains the body from the Medical
Examiner’s office after the autopsy. According to the records, the
autopsy was performed at approximately 11:00 a.m., on September 12, and it would
have been completed by approximately 12:30 p.m. Claimant’s call to Mr.
Jaeger was made between 3:30 and 4:30 p.m., that afternoon, after
the autopsy was completed.
The Claimant argues that her failure to return the consent form should have
been interpreted as an objection to the autopsy, and that pursuant to the
language on the consent form,
her consent was
required before an autopsy could be performed in the 48 hours after death; she
also argues that the time frame within which the autopsy was performed, failed
to comply with the Public Health Law requirements, and that “next of
kin” in the statute refers to all of the persons who have the same degree
of affinity. In other words, the consent to perform the autopsy had to be
signed by all five children. Claimant seeks damages for Defendant’s
breach of the statute (Public Health Law § 4214) and for intentional
affliction of emotional distress.
Defendant argues, in opposition, that public policy bars any action for
intentional infliction of emotional distress against the State, and the proof
fails to show that the State otherwise breached any duty owing to Claimant. It
is the State’s position that once the consent of Margaret Davies, the
offspring who resided and cared for the decedent, was obtained, no other consent
was required. Next of kin means one next of kin and not all of the next of kin
in the State’s view.
The right to autopsy a deceased exists only by statute or permission of the
decedent (Public Health Law § 4210-a). An autopsy performed without legal
authority or proper permission is a misdemeanor (Public Health Law §
A hospital may order an autopsy as long as there is compliance with Public
§ 4214(1) which provides:
The director or person having lawful control and management
of any hospital in which a patient has died may order the performance
of an autopsy upon the body of such deceased person, after first
giving notice of the death to the next of kin of such person, unless the
body is claimed or objection is made to such autopsy by the next of
kin within forty-eight hours after death, or within twenty-four hours
after such notice of death. In no case shall an autopsy or dissection
performed upon any body within forty-eight hours after death,
unless a written consent or directive therefor has been received from the
person or persons legally entitled to consent to or order such autopsy
or dissection. Except as required by law, no dissection or autopsy
be performed on the body of any person who is carrying an identification
card on his person indicating his opposition to such dissection or
This case turns upon an interpretation of this statutory language;
specifically, who must provide written consent. It is without dispute that this
autopsy was performed within 48 hours of Dr. Westerfeld’s death. The
critical question is whether Margaret’s written consent was sufficient for
purposes of the statute or was the consent of all five children required?
As with any statutory construction case, the primary consideration is to
“ascertain and give effect to the intention of the Legislature.”
(McKinney’s Statutes § 92[a]; Riley v County of Broome,
95 NY2d 455, 463). “The words of the statute are the best evidence of
the intention of the legislature” and the unambiguous language should be
construed to give effect to its plain meaning (id.; Matter of DaimlerChrysler
Corp. v Spitzer, 7 NY3d 653, 660).
The initial inquiry is who is legally entitled to consent to the autopsy.
Public Health Law
The right to autopsy the body of a deceased person exists when,
as relevant here, ... “[w]henever and so far as the husband, wife or
next of kin of the deceased, being charged by law with the duty of
burial, (a) may authorize dissection for the sole purpose of ascertaining
the cause of death, or (b) may authorize dissection for any other purpose
by written instrument which shall specify the purpose and extent of the
dissection so authorized, and when a dissection is so authorized pursuant
to this subdivision the person authorizing the dissection also may designate
a physician licensed in any State or country to observe such
(Public Health Law § 4210).
The statute gives the right of consent to the husband, wife, or next of kin
being charged by law with the duty of burial. The dependant clause, being
charged by law with the duty of burial restricts the class of persons
required to consent. Who, then, has the duty of burial? Public Health Law
§ 4200(1) clearly establishes the duty but imposes it on no specified
individual or group of individuals. To find upon whom the duty is imposed, we
must turn to case law.
The case law clearly establishes the hierarchal right to possession and the
corollary duty of proper burial of the decedent, first in the spouse and
thereafter the next of kin (Darcy v Presbyterian Hosp.,
202 NY 259;
Gostowski v Roman Catholic Church
, 262 NY 320; Finley v Atlantic
, 220 NY 249; Correa v Maimonides Med. Ctr.,
165 Misc 2d
614; Rotondo v Reeves
, 153 Misc 2d 769, revd on other grounds
AD2d 1086; Lott v State of New York,
32 Misc 2d 296). In the absence of
a spouse, the next of kin bear both the burden and the right to the uninterfered
burial of their deceased (Patterson v Patterson,
59 NY 574). Case law,
at least as uncovered by this Court, does not define “next of kin.”
(See Matter of Bernstein,
185 Misc 2d 493; Whack v St. Mary’s
Hosp. of Brooklyn,
2003 NY Slip Op. 50026[U]). Next of kin is defined in
the EPTL § 2-1.1 as distributees or the person(s) entitled to take or share
in the property of the decedent under statutes governing descent and
distribution (EPTL §§ 2-1.1 and 1-2.5). Those persons under the EPTL
are children first, followed by other descendants of common ancestry. All
things being equal then, the next of kin with the duty and the right of burial
are a decedent’s children with no one child bearing a greater obligation
or right. This, too, would be consistent with Defendant’s own
policy manual relating to autopsies (Policy Number A-11) reflects that
permission must be granted by the “next of kin,” which the policy on
Informed Consent (Policy No. C-07) reflects are in order of contact, the Health
Care Proxy, the spouse, or if none, the “[c]hildren (18 years of age or
older).” (Exhibits F and G). No preference is given for one child over
Yet, to give purpose to the qualifying language of the statute, authorizing who
may consent to an autopsy (Public Health Law §4210), case law seems to
suggest, in some circumstances, the duty of burial may fall to one other than
the spouse or next of kin closest in line of descent. At common law a duty is
recognized in the one under “whose roof” the decedent dies, to care
for the body until it may be properly buried (see Finley, 220 NY at 255;
Schwartz v State of New York, 162 Misc 2d 313, 322). This duty may
evolve into the duty to provide a proper burial and may even fall to one
unrelated to the decedent (see e.g. Cercelli v Wein, 60 Misc 2d 345,
hotel owner had duty of burial; Schwartz, 162 Misc 2d 313, at 322-323, if
inmate had no family willing to claim his body, Department of Correctional
Services, in whose custody decedent died, would have had duty of burial). This
rule of law led one Court to find one child had the duty to bury the parent who
died without a spouse over another child of common affinity. In McKibben v
McKibben, 203 Misc 310, a father died leaving seven children and no
spouse. Prior to his death, the father resided with one child, Madeline.
Madeline arranged for and paid the cost to bury her father, deciding with her
other siblings (not the defendant brother) to use a small insurance policy to
cover another debt. Madeline then sought reimbursement of a proportionate share
of the burial costs from one estranged brother. The McKibben Court held
that based upon the common law duty of the person under whose roof a person dies
to care for the body for burial, the Court found the obligation for burial fell
to Madeline, with whom the father was living at the time of his death. As the
duty of burial fell to her, so did the obligation for the cost. Weighing into
the Court’s decision was Madeline’s failure to consult or even
notify the estranged brother of the arrangements, despite her argument that she
didn’t know how to reach him (see also Hassard v Lehane, 143 AD
424, mother with whom decedent resided had duty of burial; compare
Stiles v Stiles, 113 Misc 576, primary right/duty to bury with spouse
over children, but in some circumstances, such an inflexible rule might result
in great harshness; Buchanan v Buchanan, 28 Misc 261, where widow,
although the one bearing the duty of burial under the law, did not have the
right to decedent’s body as against the decedent’s brother, where
the widow had been separated from the decedent prior to his death and had
commenced an action for separation from the decedent).
Yet, in those cases where someone other than the spouse was found to have the
duty and right of burial or in McKibben where one child had the duty of
burial over another child, the circumstances reflect physical possession of the
body at the time of death, estrangement or other unusual factors. In this case,
although Margaret stood out as the person with whom Dr. Westerfeld resided prior
to his hospitalization and who managed his affairs as his power of attorney, his
other children were not estranged, unidentified, or unavailable for consent. It
seems to this Court, under these circumstances, that the duty to provide Dr.
Westerfeld with a proper burial belonged to the five children as an equal group.
That one or more children may have taken the lead does not negate the legal duty
and right of the others.
This Decision comports with the well-guarded right of a decedent’s family
to the undisturbed possession of their loved one’s body in the condition
it was at death; a right that has been protected through the private right of
action even in early common law (see Darcy v Presbyterian Hosp., 202 NY
259; Finley, 220 NY at 249; Buchanan, 28 Misc at 261 ;
Massaro v O’Shea Funeral Home, 292 AD2d 349 ). The statutory
limitation on autopsies in Article 42 of the Public Health Law “reflects
these concerns for respecting the corporeal remains of decedents and protecting
the feelings of family members by strictly limiting the circumstances under
which autopsies may be performed.” (Bambrick v Boothe Mem. Med. Ctr.,
190 AD2d 646, 647; see also Public Health Law Article 42).
The statutes give the next of kin, or even a friend, the right to object to
the autopsy, particularly where the objection is based upon the decedent’s
religious beliefs (see Public Health Law §4210-c and 4214).
The burden to obtain the written consents of all of the nearest next of
kin is not, based upon the statute, unduly onerous, where the burden is cast for
only the initial 48 hours after death. For in this case, if Defendant had
waited an additional 10 hours, as no established urgency was identified, and if,
as Mr. Jaeger testified, no objections were received, no liability would be
found. Placing this obligation upon the hospital is consistent with the
language of the statute and case law, and is reflective of Mr. Jaeger’s
awareness of the importance, if not the legal requirement, to obtain the consent
of all of the children. Accordingly, the Court finds that within those initial
48 hours after his death, the written consent of all five children was required
to legally perform the autopsy (see Bambrick, 190 AD2d at 646). The
failure to obtain the necessary written consents establishes this claim for a
Claimant testified to the emotional distress she suffered as a result of the
unauthorized autopsy, and although the Court did find the continued upset she
described contrived, her initial distress was likely sincere. Even without an
accompanying established physical injury, emotional harm is recoverable where it
is due to the negligent mishandling of the body of a close relative (see
Johnson v State of New York, 37 NY2d 378, 382; Correa, 165 Misc 2d at
620). Accordingly, Claimant is awarded the sum of THREE THOUSAND DOLLARS
($3,000.00). Claimant’s request for punitive damages is denied as
punitive damages may not be assessed against the State (Harvey v State of New
York, 281 AD2d 846, 849).
All motions not previously addressed are hereby DENIED.
To the extent claimant has paid a filing fee, it may be recovered pursuant to
Court of Claims Act §11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
Syracuse, New York
HON. DIANE L. FITZPATRICK
Judge of the
Court of Claims
.Dr. Perez’s testimony was taken at a
deposition and entered into evidence as Exhibit L.
. This is contained in Exhibit 4.
.A hospital autopsy can occur by request of
the family or the request of the clinician, if, for instance, the cause of death
is not clear. A medical examiner autopsy must occur under certain circumstances
and consent is not necessarily required (Public Health Law §§ 4210,
4214, Exhibit F).
.At the bottom of the consent form it
provides: “Pathologist may not proceed with examination unless proper
signature(s) have been obtained and until permit has been checked to be sure
that it is complete and satisfactory.” (See Exhibit 3).
.See Exhibits F and G.