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Body Parts Suit Enters Murky Area of the Law

March 13, 2004|Jean Guccione | Times Staff Writer

Families who sue UCLA medical school as a result of a scandal over alleged body trafficking are entering a murky area of the law, with few precedents and legal principles to guide them, experts say.

"The issue really doesn't come up that often," said Michael H. Shapiro, a USC law professor who specializes in bioethics.

Indeed, UCLA medical school this week became just the third such school in the nation to be sued by survivors for illicit sales of donated cadavers. The others are UC Irvine and the University of Texas Medical Center in Galveston.

One hurdle for plaintiffs is proving that the wishes of the dead were dishonored.

The director of UCLA's willed body program and a middleman are suspected of selling for personal gain the remains of as many as 800 corpses to research corporations. The program was indefinitely suspended this week.

Although donors many not have intended to line anyone's pocket, UCLA may well argue that the bodies ultimately did go "to science," as donors specified.

That would mean UCLA did not break its pledge, said Louis Marlin, an outside attorney representing UCLA.

"If these remains went to appropriate research and educational facilities, then they may have been used for the purposes in which they were given," he said.

But Beverly Hills attorney Raymond P. Boucher said literature from the UCLA program states that body parts cannot be legally sold for profit -- suggesting to donors that their bodies would not be sold by UCLA.

It also states that donors would receive a dignified burial -- a pledge that he said UCLA violated.

Boucher represents a proposed class of family members who sued UCLA for negligence, breach of contract and fraud. The suit, filed Monday in Los Angeles County Superior Court, seeks unspecified monetary damages.

Marlin said the medical school's defense in the new suit probably would echo that in a 1996 lawsuit by families alleging that donor remains were improperly commingled with medical waste and disposed of at a garbage dump.

In that case, also filed by Boucher, UCLA argued that it is immune from civil liability under the state Uniform Anatomical Gift Act. That state law is designed to promote medical research and education by barring lawsuits by family members who, among other things, might object to decedents giving their bodies to science.

UCLA also argued in that case that donors gave the university the irrevocable right to use and dispose of the bodies as it sees fit.

"There is no requirement that the recipient dispose of the remains and anatomical waste in a manner that the relatives find not to be offensive," Marlin wrote in an appellate brief filed in December 2000 in the 1996 case.

In an interview, Marlin pressed the point further.

"What is mishandling a cadaver?" he asked. The use of a human body for medical research and education is "not a pretty or clean or lovely procedure."

Marlin also argued in the 1996 case that family members were neither parties to nor beneficiaries of whatever agreement the donors made with the university and that therefore they didn't have standing to sue.

That amounts to saying, "It's OK to defraud somebody as long as they die as part of the fraud," Boucher replied.

He argued that close family members have the right to sue as third-party beneficiaries because they were the ones who notified UCLA when the donors died.

They might have withheld fulfilling a donor's wishes if they had known the nation's first willed body program intended to violate its agreement with the decedent, he said.

"You just can't let somebody get away" with mishandling donated remains, he said.

Shapiro said UCLA would be going too far if it argued that there were no limits to what the university could do with the bodies. "It's crazy to say that the person who received the body can do anything they want because the person is dead," he said.

There are few court rulings on the point. None of the legal actions against universities have gone to trial yet. UC Irvine has settled four claims for about $375,000.

The Texas cases are on appeal. The trial judge ruled that a state law bars breach of contract suits against a governmental entity, one of the plaintiffs' lawyers said.

"This is the most egregious wrong that has gone unredressed," said attorney Dave George of Houston, who represents 25 families in the Texas litigation. "None of these cases have been successful because of government immunity" from prosecution in Texas.

Most cases alleging the mishandling of human remains involve mortuaries and crematoriums, where services were paid for but not properly provided. Those cases typically range from commingling of ashes to stealing gold fillings from teeth.

"Stolen body parts is really a new kind of abuse," said Newport Beach attorney Federico C. Sayre, whose clients are among the plaintiffs in the first UCLA and the UC Irvine litigations.

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