Request By:
Mr. John D. Sword
Attorney at Law
Taylor Building
Richmond, Kentucky 40475
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise the question about whose consent is necessary for an autopsy where the deceased had no living spouse, but was survived by more than one child. The specific question is whether the consent of all the children is necessary. We are of the opinion that the consent of all the children is necessary.
You have read OAG 77-618 in which we concluded that the consent, where there is no surviving spouse, of all the children should be obtained as a conservative practice. What we were saying there, and we will say it here, is that the consent of all the children must be obtained, although any wrongful damage suit arising out of an autopsy would have to be brought in one action. In
North East Coal Co. v. Pickelsimer, 253 Ky. 11, 68 S.W.2d 760 (1934) 763, the court embraced the principle that the right of action of the "next of kin" is a family right, and the daughters and sons or brothers and sisters, as the case may be, may maintain one action and not a separate action by each one of them. This means, in effect, that all persons within the term "next of kin" must join in such suit. See also
Hazelwood v. Stokes, Ky., 483 S.W.2d 576 (1972) 577.
You are unable to rationalize our conclusion with KRS 72.070, which provides that if two or more persons assume custody of the body, the consent of one of them shall be deemed sufficient. As you pointed out, KRS 72.070(2) requires, for purposes of an autopsy, the consent of the "person who assumes the duty of legal disposal of the body." In
Lashbrook v. Barnes, Ky., 437 S.W.2d 502 (1969), which you cite, Henry Cobb died in Missouri and was buried in Kentucky. Later, the mother of Cobb had the body exhumed under KRS 72.080 and arranged for an autopsy under her written consent. The court held, in passing, that the mother was the person legally authorized to give permission for an autopsy. This implicitly means that the mother was the next of kin. But your problem does not, and the situation in OAG 77-618 did not, involve digging up a body.
OAG 77-618 was written under the factual situation in which the coroner, if he had exercised his jurisdiction by conducting an inquest, had completed his inquest and relinquished jurisdiction. He was completely out of the picture. Under KRS 72.070, if the coroner has exercised his jurisdiction by conducting an inquest and has not completed his inquest procedure, then an autopsy of an unburied body can be authorized by the coroner at his direction only, i.e., at his request. If he does not want to take the initiative, an autopsy may be arranged, with the coroner's consent [where he has not relinquished jurisdiction] and whenever the deceased has granted his consent in writing prior to his death, or where written or telegraphic consent is given by the person who assumes the duty of legal disposal of the body. And if two or more persons assume custody of the body, the consent of one of them shall be deemed sufficient.
KRS 72.070(3) provides in part that any physician, surgeon, or chemist who performs an autopsy upon the request of the coroner or with the consent of any one of the "persons" enumerated in subsection (2) shall not be liable in damages or otherwise accountable to any person therefor. It is our opinion that the "persons" mentioned in subsection (2) of KRS 72.070 are really two categories of persons: (1) The deceased's written consent to an autopsy executed, of course, before death; and (2) The person who assumes the duty of legal disposal of the body. If the latter category is involved, one of the persons in such category will suffice.
But note that when KRS 72.070 is read in its entirety, it involves a situation in which the coroner has assumed jurisdiction by way of inquest and has not relinquished jurisdiction. Thus an autopsy will arise under either of two situations: (1) Where the coroner directs the autopsy himself without any other consent; (2) Where the coroner agrees to or consents to the autopsy plus the written pre-death consent given by deceased or plus the written consent of at least one of the persons who assumes the duty of legal disposal of the body.
Now turning to OAG 77-618, we reiterate our opinion there that where the coroner has relinquished jurisdiction and can no longer be involved in this matter of autopsy, any physician or surgeon who desires to conduct an autopsy on deceased must procure the written consent of all children or of all the persons who are next of kin if he is to remain free from potential liability.