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article imageCali coroner keeps son's heart, without telling his mother

By Kim I. Hartman     Jun 8, 2010 in World
San Mateo - A state appeals court has dismissed a lawsuit by a mother who says the county coroner kept her son's heart without her consent after an autopsy. It was months after he was buried before she found out his heart had been taken from him.
A California state appeals court on Tuesday dismissed a lawsuit filed by a Daly City woman who claimed the San Mateo County Coroner's Office illegally retained her deceased son's heart after an autopsy.
In a 13-page ruling, a three-judge panel of the California First District Court of Appeal said Selina Picon never established that the coroner and a medical examiner had a duty to obtain her consent when the examiner retained the heart of her son, 23-year-old son Nicholas Picon.
"I think it's important for everybody to keep in mind Ms. Picon lost her son, and that's a tragedy, and I know everyone in the coroner's office agrees with that," said Deputy County Counsel Glenn Levy. "At the same time, we're glad the Court of Appeal made the ruling the way it did because there isn't evidence to support this case against the county."
Picon's attorney, Ayanna Jenkins-Toney, said Tuesday her client was "devastated" by the ruling and that they had not yet discussed whether to appeal to the California Supreme Court.
Picon has said she didn't find out until weeks after her son was buried in October 2006 that the coroner had kept his heart. Nicholas Picon had died unexpectedly at home reports San Luis Tribune.
County officials said the coroner's office retained the heart to confirm the cause of death, which was determined to be a previously undetected heart defect. The office later returned the heart and also changed its policies so families are notified when organs are kept.
Picon sued the county for negligence and denial of the right to control the remains of her son, claiming the county's contracted medical examiner, Dr. Peter Benson, did not have the authority to retain the heart.
State law allows coroners to keep tissues or body parts that are "necessary or advisable to the inquiry into the case, or for the verification of his or her findings."
The coroner's office later returned the heart and changed its policy so families would be notified before organs were retained.
The judges said that while they sympathize with the mother, there isn't enough evidence to support the case against the county.
One section of state law allows coroners to keep "tissues" that are "necessary or advisable to the inquiry into the case, or for the verification of his or her findings" while another section refers to "parts" of the body.
Picon contended in court documents that Benson had a "self-serving interest" to retain the heart, possibly because he was "intrigued by the rarity of the heart condition," and said tissues are not the same as organs. But the judges said the county was within the law to keep the heart.
Picon also argued that Benson was not authorized to retain the heart because he is not the actual coroner, but the judges said they disagreed with that literal interpretation.
Jenkins-Toney said she believes the ruling essentially means "an independent contractor can decide to keep whatever from a body they want to keep, without the consent of the next of kin."
"In light of the specific statutory authorization to retain parts of the body removed at an autopsy, it is difficult to discern any duty defendants owed to Picon before making the decision to retain her son's heart in this case," the judges wrote.
Picon also argued that Benson was not authorized to retain the heart because he is not the actual coroner, but the judges said they disagreed with that literal interpretation.
Picon's attorney argued the immunity does not apply in this case, because the heart was actually retained by an outside doctor, not the coroner himself. She reiterated her stand that state law allows the coroner to retain "tissue" from a cadaver if necessary for investigation, but not an entire organ.
Picon has crusaded for families' rights since 2006, when she learned weeks after her son's burial that a doctor still had his heart.
Nicholas Picon, 23, died of a previously undetected heart defect. Following an autopsy, county-contracted forensic pathologist Dr. Peter Benson kept the heart, a decision the coroner later approved, according to the county's lawyers.
More about California, Coroner, Heart, San, Mateo
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