January 20, 2000

An eyeful of cadaver law

By ANDREW BERGH
Special to the Journal

Once a corpse, always a corpse.

Which means that once you meet your maker, you won't have any recourse -- at least, not personally -- if someone tampers with your remains.

But what about your spouse or family? If your dead body is mishandled, can they take the wrongdoer to court? Can they recover substantial damages? These and other questions were recently addressed in Bauer v. North Fulton Medical Center, Inc.

For this mildly morbid lesson in cadaver law, the state of Georgia deserves our thanks.

After suffering a not-so-mild heart attack, Joseph Bauer was taken to the emergency room at North Fulton Hospital outside of Atlanta. Despite the medical staff's best efforts, his attack tragically proved fatal.

Although the timing is never good for this type of request, Bauer's wife, Rosemary, was asked at the hospital whether she wanted to donate her husband's eyes, or any other organ.

The widow declined. And although a dispute later arose as to whether other family members had orally consented, the bottom line is that nobody signed the required organ donation form.

Which makes what happened all the more flagrant. Because even though written consent was never obtained, an employee of Georgia Eye Bank, Inc., an organ harvesting company, proceeded to remove corneal tissue from Bauer's body.

Rosemary was understandably distraught that eye tissue was taken from her husband's corpse without her permission. But she took no action immediately, instead waiting more than two years before suing the hospital and Georgia Eye Bank. (As a quick aside, the organ harvesting company needs a better public relations guy. It's one thing to harvest foodstuffs like wheat, pumpkins, or even oysters -- but human organs? Yech!)

Although hindsight is always 20-20, Rosemary might be kicking herself (or her attorney) for not suing sooner.

That's because, under Georgia law, a suit for medical malpractice or personal injuries must be brought within two years. In fact, the hospital later moved to dismiss Rosemary's claims, arguing they were barred by this two-year statute of limitations.

The court granted the motion.

So that meant Rosemary had to make a choice: Either go to trial against only the eye bank, or appeal the dismissal of her claims against the hospital.

Rosemary went the appeal route. And in a mixed-bag decision rendered just last month, a Georgia appeals court said the widow should have her day in court.

Well, sort of.

First of all, the appeals court said, the malpractice statute was irrelevant to Rosemary's claims. This was so because the two-year provision only applies to improper medical care causing injury or death to patients who are still alive -- not those who are already dead.

Score one for Rosemary.

As for her claim of emotional distress, however, Rosemary suffered a setback. Those damages, said the court, were encompassed by her personal injury claim, which was barred because Rosemary didn't sue within two years.

Score one for the hospital -- and a big one at that, as the widow's emotional pain and suffering was the heart of her case.

But Rosemary still had one more argument up her sleeve.

For breach-of-contract claims, Georgia has a four-year statute of limitations. So in an effort to invoke this four-year rule, Rosemary argued that the hospital had agreed to properly care for Bauer even after he was dead, and that it breached this agreement by letting his eyes be removed from his corpse.

The appeals court sided with Rosemary, but only to a point.

Rosemary could sue the hospital for breach of contract, the court said, because she possessed a "quasi property right" in her husband's corpse.

But the court severely limited the damages recoverable by Rosemary. Emotional distress damages were out, said the court, because those could only be sought as part of Rosemary's personal injury claim, which was barred by the two-year statute of limitations.

The court instead ruled that Rosemary could only recover those damages "directly flowing" from the removal of Bauer's eyes.

For example, if the mortuary had charged more to prepare the corpse because its eyes were missing, or if the funeral expenses were higher because of delay resulting from any additional preparation time, those expenses were fair game. Otherwise, Rosemary was out of luck.

Since Rosemary probably had a larger recovery in mind, she essentially won the battle but lost the war.

Hmm. I wonder what statute of limitations applies in Georgia to legal malpractice claims. Because if Rosemary's attorney blew it by not suing the hospital in time, there might be yet another suit in the offing.

Previous columns:

• There's something about LA, 01-03-2000
• Handicaps, good and bad, 12-10-1999
• An open-and-shut case, 11-25-1999
• Praise the law, 11-04-1999
• After grief comes gimme, 10-21-1999
• Cybercow meets digitruck, 10-01-1999
• Strange, blind justice, 09-23-1999
• Court case turns on a Barney doll, 09-02-1999