A call came in the other day. A hysterical woman was on the phone. Her husband had died just moments ago. The hospital was in New York City. The woman and her family wanted to know what to do.

What to do? I'm thinking that they're calling a malpractice lawyer within minutes of their loved one having died, and they're calling me? Wouldn't they prefer to talk to a lawyer until after he's buried? After a moment of pause, I calmly started my inquiry. How old was he? Why was he in the hospital? What do you think was done wrong that caused his death? What is the cause of death?

The more questions I asked, the more I realized that the recently deceased husband was sick for many weeks before arriving at his final destination. His wife had read my series of online articles titled "In Case of Death..." His family knew months before this final day that he was the victim of medical malpractice. Despite knowing this distressing fact, his wife decided to hold off calling a medical malpractice lawyer in New York until he died. She didn't want to trouble her husband with the horrible realization that he was dying because a doctor failed to diagnose his lung cancer.

The first question she asked was whether an autopsy should be done. The answer to that question raised a number of very significant issues. The first is religious. The second is the competency of the individual doing the autopsy. First, I'll describe what an autopsy is. Then I'll show you how I answered her pressing question.

An autopsy is a detailed physical examination of a person who has died. The doctor who does this examination is called a pathologist, or a medical examiner. They literally explore the anatomy of the person who died. They look, see, and evaluate the cause of death. In order to do that they need to open and expose every part of the body. They take samples of body tissues and fluids and examine them under the microscope.

Getting back to my answer, I asked their religion. Why did I ask? In some religions there is a prohibition of desecrating a body after someone has died. An autopsy, according to some religions, interferes with a person's ability to go to the afterlife with an intact body. In her case, there was no religious prohibition to performing an autopsy.

The benefits of an autopsy are plentiful. If the exam is done properly and professionally by a physician with experience, the autopsy can yield a great deal of useful information. However, an autopsy is a double-edged sword when evaluating its' usefulness in a potential wrongful death case. Typically, an autopsy will determine why a person died. In many death cases, the autopsy provides not only valuable information about how and why someone died, but also provides useful information to be used against the family at the time of trial.

Here's the dilemma:

In a failure to diagnose lung cancer case we will claim that the failure to diagnose caused the lung cancer to spread and ultimately caused an untimely death. We also allege that had the cancer been detected at an early stage, the patient would have been able to receive treatment and would be alive today.

Let's say the victim was 65 years old and we believe he was otherwise healthy. An autopsy might reveal that he had massive heart disease. An expert pathologist might be able to argue that because of his massive heart disease, his life expectancy- even without any lung cancer- would have been severely reduced. What's the next logical argument the defense will make?

Even if the victim had no cancer, there is still the likely chance that he would have died within a few years, either from a heart attack, or a stroke (from a buildup of plaque), and the failure to diagnose the cancer didn't really shorten his lifespan.

While there are definite benefits to obtaining an autopsy, it is always fraught with the possibility that the defense will have gained useful information to use against you and your family during a wrongful death case. Having said that, it is usually beneficial to have an autopsy. Why? To determine the precise cause of death. Once we have confirmed the exact cause of death, we can work backwards and determine whether this was a slow-growing cancer or fast-growing cancer. The difference is significant and can mean the difference between a valid malpractice case or one that has no merit.

By the time I was finished talking to this clearly distraught woman, I realized that an autopsy would be beneficial for her and her family. It would put to rest idle talk by a few of the doctors that he died from an unrelated illness. This woman needed guidance and information from an experienced medical malpractice lawyer. The knowledge I provided helped her make an informed decision about what to do next.
Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer