The decision to do a postmortem examination of human remains often involves tension among several competing interests: the goals of the physician (medicolegal, scientific, educational, or clinical), the wishes of surviving friends and family (informed by prevailing religious and societal norms), and the interests of society (as articulated by the law). All three will factor into each autopsy request. All three will contribute to the climate within which the request is made. Before discussing the mechanics of requesting an autopsy, it is worthwhile to take a closer look at some of these interests.
Physicians are generally comfortable asking for permission to perform all types of invasive, uncomfortable, and sometimes risky diagnostic and therapeutic procedures on their patients. It is part of their everyday work. Such procedures fit neatly into a physician's mission of improving and prolonging the lives of patients. Many physicians, however, are much less comfortable approaching a grieving family after a patient's life has ended to ask for permission for an autopsy. There is, obviously, no benefit to the patient. And the benefits to the family, the medical community, and the community at large (although very real) may not be immediately apparent.
The process of approaching a family for an autopsy can feel awkward and is something that many physicians feel ill-prepared for. [1] Thus, like many other tasks that are perceived as less desirable, the task of asking for permission for an autopsy often rolls downhill to the most junior members of the medical staff (see Autopsy Rate and Physician Attitudes Toward Autopsy).
Physicians may feel that the entire uncomfortable situation can be avoided in their hospitalized patients, because so much clinical, laboratory, and radiographic information has already been gathered. In short, they may feel that the diagnoses are already well established and the autopsy is unnecessary. [2] This belief is not supported by the published data (see below). In cases in which the diagnoses are less certain, the medical staff may be concerned about litigation, and they may worry that the results of an autopsy may actually hurt them.
Surprisingly, perhaps, many pathologists are no more interested in autopsies than their clinical colleagues. Autopsies are unpleasant to perform, costly, and take time. The procedure itself, the selection of tissue for histology, the review of the slides, and the report writing involve a substantial investment in time (see The Autopsy Report); time that could be spent on more lucrative areas of pathology. And, unlike surgical pathology specimens or cytology specimens, most hospital pathologists are not directly reimbursed for their work on autopsies.
The payment generally comes as part of an annual lump fee for the pathologists' performance of administrative services (laboratory management, educational activities, committee meetings, etc) for the hospital. Under such an arrangement, a group of pathologists receives the same reimbursement whether they do autopsies daily or once a year. This lack of enthusiasm for performing autopsies combined with the more immediate demands of signing out surgical pathology and cytology specimens often translates into delayed autopsy reports.
In short, there is any number of compelling reasons for a physician not to request permission for an autopsy.
The topic of autopsy may be equally awkward for the family of the deceased. It can seem like a rude and insensitive request, and it comes, of necessity, at an extremely difficult time. Family members often have questions about the autopsy procedure and its effects on funeral arrangements. What does the procedure entail? Will the remains be treated with dignity? Will the body be rendered unsuitable for viewing? Will the autopsy delay the funeral arrangements? How useful will the results of the autopsy be? When will the results be available? How much will the autopsy cost? Studies have shown that the requesting physicians, many of whom have received no training in obtaining consent for an autopsy, may not be prepared to answer such questions.
For many bereaved families, religion can be a source of answers and solace. Although very few religions completely ban all autopsies, some religious traditions place a strong emphasis on the inviolability of human remains and view anything much more than ritual cleaning of the body as a desecration (see Religions and the Autopsy). [3] In some strict interpretations of Judaism and Islam, for example, sacrilegious practices include embalming, cremation, organ harvest for transplant, and the use of cadavers for anatomic demonstrations. Not surprisingly, some of these orthodox branches specifically prohibit autopsies except under extraordinary circumstances, usually in criminal cases. [4] Extremely well-organized Jewish philanthropic groups (such as Zaka in Israel and Misaska in the United States) are devoted to all matters surrounding death, and one of their stated purposes is to assist families who are opposed to an autopsy. [5]
Many diseases have a familial basis, and other family members could benefit from understanding the pathology(ies) identified at autopsy. In summary, without some guidance from the medical staff, the family may not see any good reason to grant permission for an autopsy.
Apart from the benefits to the family and physicians, autopsies offer several concrete benefits to society (eg, medical quality assurance and accurate mortality statistics; see Quality Control Metrics). In a few countries these societal benefits are seen as crucial, and the law reflects this. For example, in Austria (where autopsy enjoyed its apotheosis in the 1800s) the law permits nonforensic autopsies to be done without the consent of next of kin in cases in which there is a clear medical, educational, or scientific interest. [6] Some Scandinavian societies have also promoted the practice of autopsy pathology.
Interestingly, although the rate of hospital autopsies has fallen in most Italian hospitals, the University Hospital in Trieste has an autopsy rate of about 80%. This may be due to the fact that before the unification of Italy, the city of Trieste was part of the Austro-Hungarian Empire and subject to Austrian law. [7] At the opposite end of the spectrum are societies like the Maldives, a country in which civil law adheres closely to Islam. There, the first autopsy was not performed until 1997, and it required the importation of a foreign pathologist. [8] Most countries fall somewhere between these two extremes.
Societal support for the autopsy in the US has waxed and waned over the years. At the end of the 1800s, academic medical schools in the US were staffed by physicians who had received part of their training in Europe and borrowed from the Austrian model of medical education. Autopsy pathology in the US was further bolstered in 1910 by the release of the Flexner Report. The report was harshly critical of the state of US schools in general, but it singled out as notable exceptions schools such as the Johns Hopkins Medical School, where the autopsy and the clinicopathologic correlation were a crucial component of training. Interest in autopsy pathology during this period was intense. Such notable figures in clinical medicine as William Osler and Harvey Cushing were known to resort to extreme (and rather unethical) measures in order to perform autopsies when families denied permission. [9, 10]
The Joint Commission on Hospital Accreditation was founded in 1951 and, as part of an effort to improve the quality of care, set a minimum hospital autopsy rate of 20% for hospitals. For a time, autopsies enjoyed the support of medical educators, hospital administrators, and regulators, and in the years after the Second World War the autopsy rate in the US rose to almost 50%. But what began as a gradual decline in the 1960s turned into a drastic plunge in 1970 when the Joint Commission did away with the 20% minimum hospital autopsy rate. Most estimates place the current autopsy rate at about 10% in academic hospitals and at 5% or less in community hospitals.
Against this backdrop, this article will present an overview of the elements involved in obtaining consent for a postmortem examination in the US. The discussion will, of necessity, be general, because the applicable laws can vary significantly from one state to the next. When in doubt, the reader is advised to consult their hospital's legal counsel or another attorney who is familiar with local statutes.
One constant aspect of the law regarding autopsy is the distinction between two classes of autopsy -- medicolegal or forensic autopsies and medical autopsies. Medicolegal autopsies will be considered first.