Twenty-two year old Daniel Harold shot and killed himself while cleaning a gun. His body was taken into custody by the Orleans Parish Coroner's Office. During or immediately following the autopsy, bones, tissues and/or organs were harvested from Daniel's body His distraught family alleged they had not given their permission for the procedure.
The Southern Transplant Service sold or donated the harvested body parts to others. Daniel's mother, half-siblings and stepfather alleged that the Southern Transplant Service, the coroner's office, and numerous employees of the city of New Orleans had participated in an unauthorized harvesting of Daniel's bone and tissue. They filed a claim for, among other charges, emotional distress for damages caused to a corpse by an unauthorized autopsy.
The trial court dismissed the claims of Daniel's brother, sister and stepfather, but preserved the claims by Daniel's mother. The rejected plaintiffs appealed the dismissal of their claims, arguing that the surviving spouse and children of a person who state a cause of action are entitled to recover for the loss of consortium, service and society sustained as a result of the tortious injury to their loved one.
Holding: The decision dismissing the plaintiffs' claims was reversed. All plaintiffs had a claim for general tort damages for the emotional distress that they could prove at trial resulting from the mutilation of the body. Daniel's mother maintained a direct claim for emotional distress she can prove as a result of damage done to her son's body following his death, while her husband and children had a derivative claim for loss of consortium arising from her distress.
The Court relied upon precedent and public policy in reaching its decisions. A prior appellate decision held that "[a]lthough there is no right of property in a dead body, the duty to dispose of a corpse by a decent burial includes the right to possession of the body in the same condition in which death leaves it (See French v. Ochsner Clinic, 200 So.2d 371, 373). Therefore, Daniel's mother had the right to recover damages for the mutilation of her son's body.
Daniel's stepfather and half-siblings could not be considered "near-relatives", and could not recover direct damages for what happened to Daniel's body. However, their claims derived from the emotional distress suffered by the dead child's mother. Their task at trial would be to prove they suffered a loss of the companionship and services of Daniel's mother due to her emotional distress.
The Court remarked upon the desire for a "decent burial" that could be traced to Neanderthal times. Even in today's modern society, "respect for the dead appears to have lost none of its cultural value. . . . Society recognizes that in our culture certain survivors may experience direct compensable personal mental injury when damage is done to the corpse of a loved one.
Editor's Note: Attorney Lisa Matthews of New Orleans represented the deceased's family in Green. She told The Forensic Echo that a class action suit has been filed on behalf of unknown individuals claiming the city has not made sufficient efforts to identify the next-of-kin and obtain permission before harvesting the body parts from unidentified deceased persons. Her clients have not joined the class of claimants.
 | Lawrence Levine, J.D. Professor of Law University of the Pacific |
Professor Levine comments: Courts have long been suspicious of psychic injury, forcing plaintiffs to leap substantial hurdles before permitting them to recover for their emotional distress. Courts worry about feigned claims and excessive liability in the emotional distress context.
Louisiana is no exception and, like the majority of states, demands that those who seek compensation for directly inflicted emotional suffering must prove the genuineness of the claim by suffering some sort of physical manifestation of that emotional trauma (such as recurring headaches or a heart attack). Further, in many cases, the plaintiff must find herself in the "zone of danger"—that area in which she was at risk for possible physical injury-in order to state a claim.
The plaintiffs in Green would therefore not be able to recover for their emotional distress under the general rules: there was no evidence of physical manifestation of the mother or half-brother's emotional distress nor were they exposed to a risk of physical injury.
They were, however, permitted to recover for their emotional trauma. Recovery was permitted, as it would be in most jurisdictions, because of a well known exception to the general rule which recognizes that certain situations are so incredibly horrific that emotional trauma is to be anticipated. The prototypical example arises in the context of "mishandling of a corpse."
The Green court notes the special deference to the treatment of the deceased. Because of this and the highly expected emotional trauma that follows the mistreatment of a corpse, the court permits Mrs. Green and her stepson to recover for their emotional trauma.
Loss of consortium recovery may provide a loophole in the restrictions on emotional distress damages.
Courts are comfortable with permitting recovery for emotional distress in the mishandling of a corpse context, and in the situation of a negligently sent telegram wrongly informing of the death of a close loved one. They have not, however, moved away from these narrow exceptions in any significant way and continue to view psychic harm with suspicion. The attitudes that prevailed nearly a century ago regarding emotional harm, which influenced the rules used by most jurisdictions today, continue to prevail, despite a heightened understanding of psychic injury.
The Green case does raise an interesting paradox. The court permitted the recovery for emotional distress due to the particular concerns of the case, i.e. unauthorized harvesting of the organs of the deceased. It then permitted the deceased's stepfather and half-siblings to recover for their loss of consortium—a recovery that is highly intangible in its own right and, if successful, will allow the family members to recover the loss of companionship, society and services they suffered due to Mrs. Green's emotional trauma.
It is hard to see how loss of consortium damages are any more easily measured than those for emotional distress, yet Louisiana permits a broader recovery than other jurisdictions. Most states restrict loss of consortium recovery to spouses. To some extent, loss of consortium recovery may provide a loophole in the restrictions on emotional distress damages.
