Families Keep Cornea Rights, Court Decides

A federal appeals court in San Francisco has ruled that the Los Angeles County coroner should have obtained the permission of parents in California and Pennsylvania before harvesting and selling the corneas of their dead sons.

“Duties to protect the dignity of the human body after its death are deeply rooted in our nation’s history,” wrote U.S. 9th Circuit Judge Raymond C. Fisher for the majority in the 2-1 decision.

“The property rights that California affords to next of kin to the body of their deceased relatives serve the premium value our society has historically placed on protecting the dignity of the human body in its final disposition,” Fisher wrote.

“California infringed the dignity of the bodies of the children when it extracted the corneas from those bodies without the consent of the parents,” says the opinion, which Judge James R. Browning joined. Their ruling is in line with the only other federal court decision on the issue--issued by the U.S. 6th Court of Appeals in Cincinnati, stemming from cornea removal disputes in Ohio and Michigan.

Judge Ferdinand F. Fernandez dissented. Fernandez said that under California law the death of a loved one creates only a duty to dispose of the body, not a constitutional right to possess it.

The 2-1 ruling, issued Tuesday, paves the way for Robert Newman of California and Barbara Obarski of Pennsylvania, whose sons Richard Newman and Kenneth Obarski died here in 1997, to go to trial in Los Angeles federal court seeking damages for deprivation of property without due process of law.

The 9th Circuit reversed the decision of U.S. District Judge J. Spencer Letts, who dismissed the case after attorneys for the coroner contended that no parental consent was required under an obscure 1983 state law passed to facilitate transplants.

Under the statute, coroners were permitted to remove corneas in cases targeted for autopsy if the coroner had “no knowledge of objection to the removal.”

The law was changed in 1998 after a Times story revealed that the Los Angeles coroner’s office had sold thousands of corneas to a Los Angeles eye bank for $215 to $335 per set of corneas. The eye bank then resold them at a 1,400% markup. The cornea measure, sponsored by state Sen. Richard Polanco (D-Los Angeles), requires coroners to get permission from relatives before removing the eye tissue for transplants.

Bill Colovos, the Southgate, Mich., attorney who represents the plaintiffs, said he was pleased with the decision and looked forward to taking the case to trial. Colovos said that after the case was sent back to the trial court he would seek class-action status because there are potentially 10,000 plaintiffs with similar situations.

Los Angeles attorney Robert L. Dickson, who represents the coroner’s office, said he had not decided yet whether to seek a rehearing from a larger panel of 9th Circuit judges or simply to fight the case in the court in Los Angeles. If the case comes back to the trial court, Dickson said his first move would be to file a new motion to dismiss, based on another provision of the 1983 law that said the coroner was immune from criminal or civil liability for any actions related to cornea harvesting.

In addition, Dickson said he has successfully defended seven cases in Los Angeles County Superior Court, stemming from cornea removals. In one instance, he said, a jury found that a plaintiff was entitled to no damages from the coroner. In the other six, Dickson said, a judge threw the cases out before trial, citing a provision of the 1983 law that said pre-removal consent was not required.