Whether the Office of the Chief Medical Examiner (“OCME”) owes a duty to next of kin to provide proper identification, after being notified that it may have released misidentified remains.

The plaintiffs’ son was killed in a plane crash along with the pilot. After receiving and burying their son’s remains, the parents obtained a copy of the autopsy report prepared by the OCME.  A transcription error in the report led them to erroneously believe that they had received and buried remains of the pilot (who they blamed for the crash) along with their son.

The parents notified OCME of the potential mistake, and OCME found and corrected the transcription error, but did not notify the parents. The parents incurred some $20,000 of expenses in exhuming and DNA testing their son’s remains before concluding that they had received the proper remains.

The parents filed suit for negligence. A judge found that the OCME owed no duty to the parents, and a divided Appeals Court agreed. 75 Mass. App. Ct. 419.

1. Existence of a legal duty. The OCME conducts autopsies for the good of the public, not for private parties. The judge found, and the parents concede, that the OCME owes no duty to private parties to properly prepare an autopsy report in the first instance. However, the OCME does owe a duty to release remains “to the person with the proper legal authority to receive” them, in this case the parents. G.L. c. 38, § 13.
   
   The parents argue (and a dissenting justice agreed) that this duty implies a duty to properly identify the remains released, and to take steps to correct misidentification when a reasonable doubt is raised. The majority of the Appeals Court found that the OCME met its duty by actually releasing the proper remains; they refused to read in a duty to correct apparent misidentification.
   
   
2. The Mass. Tort Claims Act.  If the SJC does find a duty, it will also have to decide whether this claim is permitted under the Tort Claims Act.  The majority below suggested that this claim was based on a discretionary duty (to release autopsy reports), and therefore barred.  The dissent argued that this claim is based on a mandatory duty (to release properly identified remains), and therefore permitted.

This case is difficult to predict. A narrow reading of § 13 would allow the OCME to meet its duties if it releases the proper remains, even if it gives the next of kin good cause to believe that they have received the wrong remains. A broader reading would require the OCME to correct apparent misidentification.

My own view is that the broader reading is better. To take an extreme example, it is difficult to think that the OCME could meet its duties if it released remains to two families, each accidentally labeled with the other decedent’s name, and then adamantly refused to discuss the error further. While the OCME’s concerns about opening the floodgates are legitimate, this seems like a minor addition in liability, being limited to cases of misidentification and the duty to release to proper parties.