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When a family member dies, it is a heartbreaking time for the rest of the family


When a family member dies, it is a heartbreaking time for the rest of the family. That is made especially true if they are not permitted to honor the memory of their loved one in accordance with their traditions and religious beliefs. In the case of New York, there are laws that are in place to ensure that when a loved one dies, they are placed in a situation that will ensure that every effort is made to locate the next of kin and return the body to them for burial. These laws refer to sepulcher. Sepulcher is the right of a family to inter their kin in the manner that they deem appropriate. It is a recognized right in the state of New York, but that is not the way that it was always done.

In the early 1800’s, medical schools and body snatchers ran amuck in the city of New York. Many families were faced with the loss of the body of a loved one. There was a demand for the legislature to create laws that made it illegal for a person to steal a body or otherwise interfere with the right of a family to possess the body of their loved one. The legislature was faced with a problem about how to word such a fundamental right. The question arose as to whether the theft of a body was a theft of property that belonged to the family. Initially, the laws were worded to reflect the body as the property of a family. However, as laws usually do, they evolved over the years so that the right of sepulcher for a family to possess the body of a loved one was viewed more as a violation of a right to seek the solace of the ritual of a burial than it was a question of a theft of property. That evolution caused a new factor to be raised as it regarded the loss of bodies in morgues throughout the state. The right of sepulcher became an issue of the emotional distress that is caused to a loved one when the body of their family member is not immediately available to them. It is from this evolution of legal statute that the present case came into existence.

On October 28, 2001, a famous playwright , Leonard Melfi died. He was famous for writing the one-act play the Birdbath and he was instrumental in the writing of the Broadway hit play, Oh: Calcutta! He had been a resident of a welfare hotel on the upper west side of Manhattan called the Narragansett Hotel at the time that he collapsed. The Emergency Medical Services personnel filed a report of their interactions at the scene of Mr. Melfi’s collapse. Their report stated that the famous author was in respiratory distress at the time of their arrival. They recorded his address, date of birth, social security number and his next of kin with her phone number on their report. Mr. Melfi was transported to Mt. Sinai Hospital where another report, this one by the emergency room patient registration team was filled out with the same information. The triage report that was filled out on Mr. Melfi only showed that he was fitted with an oxygen mask and that no further treatment was administered to him. The attending physician in the emergency room diagnosed Mr. Melfi with congestive heart failure and atrial fibrillation. He prescribed a drug to slow Mr. Melfi’s heart rate, but again, the record does not show that any other treatment regimen was provided to him. The billing statement of the hospital showed that Mr. Melfi was treated by nurses who did a pulse oximetry, catheter placement, and electrocardiogram, but there is no report of these actions being taken in the patient’s care records.

What is clear is that minus the addition of further treatment protocols, Mr. Melfi’s condition deteriorated quickly and that he stopped breathing and was unresponsive. The records do not reflect that any attempt was made to resuscitate Mr. Melfi once his life signs ceased. He was pronounced dead at 6:20 P.M. that night.

The death certificate that was prepared in the hospital included his name and age, but did not have any of the additional information that had been on the EMS or emergency room reports regarding his social security number and next of kin. The emergency room doctor later stated that he had personally attempted to telephone the next of kin two times that night without success.

The policy of the hospital when a person dies in their care is for the emergency room doctor to make two attempts to contact the next of kin. Then the doctor hands off the case to the nursing supervisor who will make attempts to contact the next of kin that includes telephoning them, sending a police officer to the address, and sending a telegraph to the address. If there is no contact, the nursing supervisor is supposed to contact the police department to follow up on the death and locate the next of kin. There is no record in Mr. Melfi’s case that any of this was done. In spite of the testimony from the doctor that he made two phone calls, there is no documentation showing that these calls were ever made.

Mr. Melfi’s body was in the morgue at Mount Sinai Hospital for one month. On November 21, 2001, when the death certificate was filed with the New York City Department of Health, a burial permit was issued within ten days. He was then transferred to the city morgue at Bellevue Hospital where according to the record, no one there made any attempt to locate his next of kin. This is true in spite of the fact that the city morgue has in place a policy to do an investigation into the location of the next of kin of a subject who arrives in their care. However between the time that he was transferred to the city morgue on November 28, and December 20, 2001, his body was loaned to the Nassau Community College’s Mortuary Science Department where it was used for practice by the mortuary science students.

On December 20, 2001, his body was taken to the City Cemetery on Hart Island commonly referred to as “Potter’s Field.” He was buried in a mass grave with 150 other unclaimed bodies until two months later when his niece was contacted by his landlord. His niece who is a New York State Trooper contacted her father and informed him that she had been notified by the landlord of Mr. Melfi that he had passed. She was contacted by the landlord because she had met him on her visit with her uncle just one week before he died.

The family, in distress contacted the hospital and eventually located the burial site and had Mr. Melfi’s body exhumed for proper burial in their family plot. They filed a lawsuit for loss of sepulcher.

At Stephen Bilkis & Associates with its family Lawyers there are convenient offices throughout New York State and Metropolitan area. Our civil Attorneys can provide you with advice to guide you through difficult situations. Hiring a medical malpractice attorney can prevent you from losing precious time with your family.

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