Tuesday, March 28, 2000
County liable in cornea case
Judge reproves morgue's removals
BY BEN L. KAUFMAN
The Cincinnati Enquirer
Eleven years into a battle over bodies in the morgue, Hamilton County has been judged liable for damages because it allowed the corneas of corpses to be removed without family consent.
U.S. District Judge S. Arthur Spiegel said that “there can be no debate” the coroner violated the survivors' right to due process.
“The remaining issues ... will be the identity of those class members who did not consent to removal of the corneas and the damages to be awarded,” Judge Spiegel wrote.
Then jurors will decide how much the county must pay.
The judge on Friday also rejected the Cincinnati Eye Bank for Sight Restoration's motion to be dropped as a defendant.
“The CEB knew that a substantial number of the corneas removed had been done so without the consent as the CEB did not send "thank you' notes to those families who had not consented,” Judge Spiegel wrote.
Whether CEB and codefendant Eye Bank Association of America — of which it is a member — are at fault and liable for damages also will be up to jurors.
Attorneys for the CEB and association could not be reached on Monday.
The case began with Deborah S. Brotherton's accusation that then-coroner Frank Cleveland allowed CEB technicians to take her husband's corneas despite her objections.
Steven Brotherton died in 1988 and Mrs. Brotherton rejected a hospital request for organ donations. Hospital staff added her refusal to the official written report of death.
Mrs. Brotherton learned that eye bank technicians took her husband's corneas from the autopsy report that noted “corneae are absent.”
Corneas are recyclable and help restore sight to recipients.
Judge Spiegel certified her suit as a class action involving an estimated 400 families with similar complaints. They can claim damages if corneas were taken over their objections or they would have objected if they had been asked.
Carl J. Stich Jr., who is representing the county, said possibly 600 families potentially were involved but wanted no part of the suit, and others could not be found.
Mrs. Brotherton asked $1.5 million but her attorney, John Metz, said specific figure has been set for the 400-family class-action.
He said Mrs. Brotherton's suit was the first of its kind nationally when he filed it in February 1989.
Since then, however, Mr. Metz said on Monday, juries around the country have awarded $400,000 to $700,000 where corneas were taken by hospital personnel who misread family consent denials.
No one has suggested that Dr. Cleveland, now retired, profited from cornea removals.
Ohio began allowing coroners to “harvest” corneas for transplants and other medical uses in 1983.
The law said corneas may be removed only if a coroner “has no knowledge of an objection to the removal by the decedent, his spouse, his next of kin, his legal guardian, or someone authorized to dispose of his body.”
In 1985, CEB asked Dr. Cleveland “to remove the corneas of any coroner's case which falls within the guidelines” of the Ohio law.
He told his staff to harvest “as many corneas as possible” and established a policy of “intentional ignorance,” according to a U.S. Court of Appeals for the 6th Circuit ruling last year that allowed the suit to continue.
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