Thursday, June 24, 2010
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C.A. Tosses Mother’s Suit Against Doctor Who Kept Son’s Heart
By STEVEN M. ELLIS, Staff Writer
The First District Court of Appeal has thrown out a lawsuit by a Daly City woman who claimed the forensic pathologist who conducted an autopsy on her 23-year-old son for the San Mateo County coroner retained her son’s heart for his own “self serving interest.”
Div. Four on Tuesday ordered publication of its May 25 ruling that a coroner conducting an inquiry into cause of death has no duty to obtain consent from next of kin before retaining a part of the decedent’s body to determine cause of death, or for scientific investigation or coroner training.
Isolina Picon sued the County of San Mateo, County Coroner Robert Foucrault and Dr. Peter Benson after she learned that the coroner’s office kept the heart of her son Nicholas—who died unexpectedly at home in October 2006—when it released the body for burial.
Benson, who had performed postmortem exams under contract with the county since 1968, found what he described as a “structural abnormality” in Nicholas Picon’s heart when examining Picon’s remains, and retained the heart for further examination.
Cause of Death
After toxicology tests indicated no drugs or medication in the body, Benson concluded the cause of death was “probable cardiac dysrhythmia due to intramural tunneling of the left anterior descending coronary artery.” He decided, however, to send the heart to Stanford University to confirm his findings.
Isolina Picon, meanwhile, demanded return of her son’s heart weeks after learning she had buried him without it. The coroner’s office turned the heart over within a month of her son’s death, but Picon then filed suit accusing the defendants of denying her “quasiproperty right to control the remains of a deceased person” and negligence.
She claimed that Benson’s retention of the organ was “unauthorized,” and insinuated the existence of a conspiracy to funnel body parts to Stanford for research. She also asserted that Foucrault—the elected coroner who contracted with Benson to conduct autopsies because he was not a medical doctor—was vicariously liable for allowing Benson “unfettered freedom.”
Picon has also said that she is not convinced the heart she received from the coroner’s office was her son’s.
Summary Judgment Motion
The defendants moved for summary judgment, but Picon submitted an expert declaration by another forensic pathologist, Dr. Judy Melinek, who said Picon’s son died from a viral infection that spread to his heart and that there was “no clinical or diagnostic reason” to retain the entire organ.
San Mateo Superior Court Judge John L. Grandsaert found a disputed issue of fact as to why the defendants retained the heart and denied the motions, but the Court of Appeal reversed in an opinion by Justice Timothy A. Reardon. He wrote that “Picon never established that defendants owed her a duty to obtain her consent before retaining her son’s heart.”
Pointing out that the Government Code grants coroners substantial discretion in retaining tissues and parts of the body removed at an autopsy, Reardon rejected Picon’s argument that Benson’s status as an independent contractor was significant.
The justice also rebuffed Picon’s assertion that the Government Code’s reference to “tissues” precluded retention of an entire organ, and said that retaining an organ to satisfy “scientific curiosity” only required consent from next of kin if the organ was to be released to a third party for non-coroner research purposes.
Reardon further opined that “Dr. Melinek’s declaration actually underscores Dr. Benson’s opinion that a specialist should confirm the cause of death.” He faulted the defendants for “poor communication with the Picon family,” but noted that the record indicated that the coroner’s office subsequently adopted a formal policy with respect to notifying family members of the retention of organs.
Presiding Justice Ignazio J. Ruvolo and Justice Patricia K. Sepulveda joined Reardon in his opinion.
Picon’s attorney, Ayanna Jenkins-Toney, said last month that she would appeal to the California Supreme Court, while a lawyer for the county, Bryant French, said the court read the law correctly and that there was no evidence that the wrong heart was returned.
Criminal Trial
Picon, 55, is currently facing a trial July 6 on grand theft and residential burglary charges for allegedly taking $7,500 from a South San Francisco woman in 2005 and 2006 while claiming she could help the woman’s imprisoned brother legally navigate through parole proceedings. Authorities say Picon, who is not a member of the State Bar, agreed to represent the woman’s brother at a 2005 parole hearing and gave the woman a business card that had “attorney at law” written on it.
Picon has denied claiming to be an attorney or stealing money, and said last month that the charges stem from the county’s effort to keep her from speaking out about her claims against the coroner.
The case is Benson v. Superior Court (Picon), A127285.
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