Jobin v. McQuillen

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 90-146


 Saffron C.B. Jobin                           Supreme Court

      v.                                      On Appeal from
                                              Chittenden Superior Court
 Eleanor McQuillen, et al.
                                              November Term, 1991


 Francis B. McCaffrey, J.

 Lori Ruple of Peterson & Ruple, Jericho, for plaintiff-appellant

 Michael J. Gannon of Pierson, Wadhams, Quinn & Yates, Burlington, for
   defendant-appellee McQuillen

 Robert L. Sand of Dinse, Erdmann & Clapp, Burlington, for defendant-appellee
   State of Vermont



 PRESENT:  Gibson, Dooley and Johnson, JJ., and Peck, J. (Ret.), Specially
        Assigned


      Gibson, J.  Plaintiff Saffron C. B. Jobin appeals from the award of
 summary judgment to defendants, Chief Medical Examiner Dr. Eleanor N.
 McQuillen and the State of Vermont.  Plaintiff claims damages for mental,
 emotional and psychological distress caused by the removal and retention of
 her son's brain in connection with an autopsy authorized by statute.  She
 challenges the superior court's conclusion that both defendants are immune
 from suit and that she has failed to make out a prima facie case.  We
 affirm.

                                     I.
      Plaintiff's 13-year-old son, Joshua Jobin, died at home on March 4,
 1986, after suffering flu-like symptoms.  He had cerebral palsy.  Because
 it appeared that the boy had died of a treatable medical condition,
 unattended by a physician, Dr. McQuillen performed an autopsy the following
 day, pursuant to 18 V.S.A. { 5205(f).  During the autopsy, she removed the
 boy's brain.  On the death certificate and a preliminary autopsy report,
 both signed March 5, 1986, Dr. McQuillen cited pneumonia as the cause of
 death, and she authorized that the body be cremated.
      Initial examination of the brain revealed no gross abnormalities, but a
 comprehensive analysis was not immediately possible because the brain had
 to be "fixed" in formalin, a stiffening agent, for approximately two weeks
 before it could be studied further.  When the brain was ready for further
 study, it revealed substantial irregularities associated with a neurologic
 disorder.  Dr. McQuillen issued a detailed autopsy report on April 21, 1986,
 in which she again concluded that the boy had died of pneumonia.  The report
 also stated, "The entire brain is saved.  Dr. Thomas Kemper,
 neuropathologist, Boston City Hospital, will be consulted when the case is
 completed as to his interest in receiving this brain for further study."
 Upon reading the report, plaintiff objected to the retention of her son's
 brain and demanded that it be returned to her.  Dr. McQuillen agreed to
 return the brain, and plaintiff retrieved it on May 12, 1986 for cremation.
 Plaintiff brought this action on March 29, 1988.
      In the course of discovery, plaintiff deposed Dr. McQuillen, who also
 submitted an affidavit with her motion for summary judgment.  Plaintiff
 presented no independent expert testimony.  Dr. McQuillen testified that it
 was essential to an accurate determination of the cause, manner and
 circumstances of the boy's death that his brain be removed and examined,
 that neuropathologists who had studied the brain had recommended that it be
 examined further, and that Dr. Kemper might have been able to explain the
 relationship of the child's cerebral palsy to his death from pneumonia.  She
 also testified, however, that further study of the brain had not been
 necessary to determine the cause of death, and that she had returned the
 brain to plaintiff because "it seemed more important to her . . . than my
 question to [Dr. Kemper]."
                                     II.
      Summary judgment is appropriate if the moving party establishes that
 there is no genuine issue of material fact and that it is entitled to
 judgment as a matter of law.  V.R.C.P. 56(c).  In the instant case, the
 underlying facts are not disputed.  The court granted summary judgment to
 defendants, concluding that Dr. McQuillen was protected by qualified
 immunity and that the State had not waived its sovereign immunity.  The
 court also concluded that plaintiff had failed to make out a case of either
 negligent or intentional infliction of emotional distress.  We first
 consider whether plaintiff has made out a valid claim for relief.  If she
 has failed to establish an element essential to her case, we must affirm the
 court's order.  Poplaski v. Lamphere, 152 Vt. 251, 254-55, 565 A.2d 1326,
 1329 (1989).
                                     A.
      Plaintiff first sets out her common-law right to possession of her
 son's body as an independent basis for her claim.  See Nichols v. Central
 Vt. Ry., 94 Vt. 14, 16, 109 A. 905, 906 (1919).  She argues that by removing
 and retaining the brain after the cause of her son's death had been
 determined, Dr. McQuillen exceeded her authority to conduct an autopsy and
 thus violated this right.  Once pneumonia was established as the cause of
 death, plaintiff maintains, the State's interest in her son's body
 terminated, and Dr. McQuillen had no authority to retain the brain for
 further study.
      We agree that the medical examiner is not authorized to retain body
 parts solely for scientific study, absent consent from the surviving spouse
 or next of kin.  See Crenshaw v. O'Connell, 235 Mo. App. 1085, 1091, 150 S.W.2d 489, 491-92 (1941); Scarpaci v. Milwaukee County, 96 Wis.2d 663, 679-
 80, 292 N.W.2d 816, 824 (1980).  Dr. McQuillen's testimony does not suggest,
 however, that her interest in retaining the brain was purely academic.  She
 testified that further study of the brain might have helped to explain
 exactly how plaintiff's son died, even though she had issued her final
 autopsy report, and that neuropathologists with whom she had consulted had
 recommended further study of the brain.  18 V.S.A. { 5202a(a) provides that
 the medical examiner may submit a correction of a death certificate up to
 six months after the date of death.  The fact that Dr. McQuillen returned
 the brain when plaintiff requested it indicates only, as she testified, that
 she determined that it was more important to plaintiff that the brain be
 returned than it was to continue to investigate the precise cause of death.
      Absent evidence that Dr. McQuillen exceeded her authority or deviated
 from the customary autopsy procedure, we do not think a jury could
 reasonably find that she breached plaintiff's common-law right to
 possession of her son's body by the temporary possession of the brain.
 Nothing in the information before the court in connection with the summary
 judgment motion shows that Dr. McQuillen exceeded her authority.
                                     B.
      Consistent with modern authority, plaintiff's claim that Dr. McQuillen
 mishandled her son's body is perhaps better analyzed as one based directly
 on emotional distress.  See Restatement (Second) of Torts { 868, comment a
 (1979) (claim based on interference with body is in reality one for
 emotional distress); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and
 Keeton on the Law of Torts { 12, at 63 (5th ed. 1984) (claim of property
 right to body is of "dubious" validity; goal is protection of survivors'
 personal feelings).  The appropriate question, therefore, is whether
 plaintiff has made out an emotional distress claim that can be recognized
 under Vermont law.
      In Nichols v. Central Vt. Ry., a mother claimed damages for mental
 suffering caused when a railroad employee negligently dropped a box
 containing her young son's body onto the tracks in front of a stopping
 train.  The Court recognized a right in the surviving spouse or next of kin
 of a dead person to possess the corpse undamaged in preparation for burial,
 but declined to consider whether the plaintiff was entitled to nominal
 damages because she had not raised the claim below.  94 Vt. at 16-17, 109 A.  at 906.  The Court affirmed a directed verdict for the railroad on the
 ground that the plaintiff was not entitled to damages for "mental suffering
 independent of physical injury . . . when occasioned by the mere negligent
 conduct of the defendant," distinguishing cases where the plaintiff was
 physically injured or where the mental suffering was the result of "wilful
 or malicious conduct."  Id.
      Plaintiff argues that Dr. McQuillen's removal and retention of her
 son's brain was willful, not negligent, and that Nichols thus does not bar
 her claim.  We agree that Dr. McQuillen's actions were willful, in the sense
 that her retention of the brain was intentional and not accidental.  We do
 not think, however, that her conduct falls within the meaning of the word as
 it is used in Nichols.  There, in distinguishing the willful mishandling of
 corpses from the negligence alleged by the plaintiff, the Court wrote, "'in
 mere negligence there is no intent to offer indignity to, or wound the
 feelings of, another . . . .'"  Id. at 20, 109 A.  at 908 (quoting Koerber v.
 Patek, 123 Wis. 453, 465, 102 N.W. 40, 44 (1905)).  The Court concluded that
 the cases cited by the plaintiff held only "that damages may be recovered by
 those entitled to the possession of a dead body for burial for mental
 anguish caused by its wilful or wanton mutilation."  Id.  Thus, the Court in
 Nichols simply recognized that a plaintiff could recover for mental
 suffering caused by intentional misconduct involving a corpse, such as would
 fit the more recently recognized tort of intentional infliction of emotional
 distress.  See Prosser & Keeton, supra, at 63.
      Liability for intentional infliction of emotional distress can arise
 only from conduct so outrageous and extreme as to "'go beyond all possible
 bounds of decency.'"  Demag v. American Ins. Co., 146 Vt. 608, 611, 508 A.2d 697, 699 (1986) (quoting Restatement (Second) of Torts { 46, comment d
 (1965)).  It is for the court to determine as a threshold question whether a
 jury could reasonably find that the conduct at issue meets this test.
 Restatement (Second) of Torts { 46, comment h.  In the instant case, the
 evidence does not suggest that Dr. McQuillen intended to cause, or
 recklessly ignored the risk of causing, plaintiff to suffer emotional
 distress.  In the context of an authorized autopsy, her conduct was not
 extreme and outrageous, and plaintiff's claim of intentional infliction of
 emotional distress was properly rejected.
                                     C.
      Plaintiff also argues that she is entitled to damages on the basis of
 Dr. McQuillen's alleged negligence in exceeding her authority to conduct an
 autopsy on her son's body.  Plaintiff has not alleged that she suffered
 physical harm, however, or that she was subject to a reasonable fear of
 immediate physical injury.  Thus, like the plaintiff in Nichols, she has not
 made out a claim of negligent infliction of emotional distress, and this
 claim, too, was properly rejected.  See Vaillancourt v. Medical Center Hosp.
 of Vermont, Inc., 139 Vt. 138, 143, 425 A.2d 92, 95 (1980) (husband outside
 zone of danger could not recover for emotional distress caused by allegedly
 negligent care of wife during childbirth that resulted in death of fetus);
 Guilmette v. Alexander, 128 Vt. 116, 120, 259 A.2d 12, 15 (1969) (mother
 outside zone of danger could not recover for pain and suffering caused when
 she witnessed motorist negligently strike her daughter, causing severe
 injuries); cf. Savard v. Cody Chevrolet, Inc., 126 Vt. 405, 410, 234 A.2d 656, 660 (1967) (child who was lightly showered with debris when a truck
 crashed into her house, but was not physically injured, could recover for
 emotional distress caused by fear of immediate physical injury).
      Nonetheless, we recognize the special sensitivity that accompanies the
 handling of corpses.  Some jurisdictions have held that, in cases involving
 the negligent mishandling of family members' corpses, plaintiffs need not
 allege additional elements of damage in order to recover for mental
 suffering.  See, e.g., Strachan v. John F. Kennedy Memorial Hosp., 109 N.J.
 523, 538, 538 A.2d 346, 353 (1988) (seeking organ donation, hospital
 employees refused to disconnect dead son's body from life-support machinery
 against parents' wishes; court recognized duty to act reasonably in response
 to family's request); see also, Restatement (Second) of Torts { 868 (1979)
 (one who intentionally, recklessly, or negligently mishandles body may be
 liable to family member entitled to dispose of it); Prosser and Keeton,
 supra, { 54, at 362 (noting cases allowing recovery for mental disturbance
 caused by mishandling of corpses in absence of further aggravating
 circumstances); contra, Burgess v. Perdue, 239 Kan. 473, 480-81, 721 P.2d 239, 245 (1986) (mother could recover cost of reburying son's body with
 brain after doctor negligently failed to tell coroner that her consent to
 autopsy did not extend to removal of brain, but court affirmed summary
 judgment for doctor on mother's emotional distress claim because doctor's
 conduct was not intentional or malicious).  In such cases, it is unlikely
 that the plaintiff can have suffered or feared physical injury, but "there
 is 'an especial likelihood of genuine and serious emotional distress, . . .
 which serves as a guarantee that the claim is not spurious.'"  Strachan, 109
 N.J. at 537, 538 A.2d  at 353 (quoting Prosser and Keeton, supra, { 54, at
 362).
      In the instant case, however, we decline to address the continued
 vitality of Nichols' bar to damages for mental distress caused by the
 negligent mishandling of a corpse, because plaintiff has not made a showing
 sufficient to establish that Dr. McQuillen breached a duty to plaintiff.
 See Poplaski, 152 Vt. at 254, 565 A.2d  at 1329.  It is undisputed that Dr.
 McQuillen was authorized to conduct an autopsy on plaintiff's son.  18
 V.S.A. { 5205(f) grants the state's attorney and the chief medical examiner
 authority to order an autopsy "if either deem[s] it necessary and in the
 interest of public health, welfare and safety, or in furtherance of the
 administration of the law . . . ."  Further, 18 V.S.A. { 506 provides that
 "the chief medical examiner shall take and preserve . . . such portions of
 the body and its contents, together with such other articles as [s]he judges
 may require subsequent examination in the investigation of the case."  As
 stated earlier, 18 V.S.A. { 5202a(a) provides that a death certificate may
 be corrected up to six months after death, and Dr. McQuillen testified that
 further study of the brain might have shed light on the exact cause of
 death.  In this context, plaintiff has not made out a prima facie case of
 negligence against Dr. McQuillen.
      Because we conclude that plaintiff has failed to make out a valid claim
 for relief, we need not address the question of Dr. McQuillen's and the
 State's immunity from liability.
      Affirmed.

                                         FOR THE COURT:



                                         ___________________________
                                         Associate Justice