Request By:
P. Raphael Caffrey, M.D.
Chipps, Caffrey & Dubilier, P.S.C.
Medical Heights
2370 Nicholasville Road
Lexington, Kentucky 40503
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Where the deceased's spouse is dead and the nearest of kin are two or more children, you ask if permission for an autopsy must be obtained from all the children. The answer is "yes". We assume the coroner, if he exercised his jurisdiction, has relinquished jurisdiction.
Before burial, if an attending physician believes an autopsy should be conducted to learn the cause of death, he may procure an autopsy by a competent physician or surgeon, provided that the written consent of the party who could bring a damage action for an unauthorized or illegal autopsy is obtained. Here the written consent of all the children should be obtained as a conservative practice.
The next of kin of a deceased have a right to sue for damages where the body is illegally disturbed or violated in some way, including an illegal or unauthorized autopsy. The "next of kin" in such cases means those who inherit from the deceased under the statutes of descent. The paramount right to dispose of the body and to have the body undisturbed is in the surviving husband or wife. If there is no surviving wife or husband, then the children of the deceased have the right. But the right of action of the "next of kin" is a family right, and thus, in an alleged wrongful damage situation, the children here would have to maintain one action and not a separate action by each one of them.
North East Coal Co. v. Pickelsimer, 253 Ky. 11, 68 S.W.2d 760 (1934) 763. It is well settled that for the purpose of preservation and sepulture, a surviving spouse, or next of kin, in the absence of a different disposition by will, has the right to possession of the dead body, which the law will recognize and protect from unlawful invasion by awarding damages for injury to the feelings resulting from any wrongful mutilation or mishandling of the corpse.
Streipe v. Liberty Mut. Ins. Co., 243 Ky 15, 47 S.W.2d 1004 (1932) 1005; and
Hazelwood v. Stokes, Ky., 483 S.W.2d 576 (1972) 577.
You ask whether the consent for an autopsy could be given over the phone or by telegram. It is our view that the consent, if given at all, should be documented, i.e., it should be executed in writing. A telephone conversation is a weak kind of evidence. We assume all the children in your situation are of legal age (18). KRS 2.015. Where any of the children are under 18, court action would be necessary to complete the consent procedure.