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Benson v. Superior Court of San Mateo County

May 25, 2010

PETER A. BENSON, PETITIONER,
v.
THE SUPERIOR COURT OF SAN MATEO COUNTY, RESPONDENT;
ISOLINA PICON, REAL PARTY IN INTEREST.
COUNTY OF SAN MATEO ET AL., PETITIONERS,
v.
THE SUPERIOR COURT OF SAN MATEO COUNTY, RESPONDENT;
ISOLINA PICON, REAL PARTY IN INTEREST.



(San Mateo County Super. Ct. No. CIV 467161). Trial Judge: Hon. John L. Grandsaert.

The opinion of the court was delivered by: Reardon, J.

pub. order 06/22/2010 (see end of opn.)

A county 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. We therefore grant the petitions for extraordinary relief filed by the defendants in the underlying action and direct the trial court to enter judgment for defendants.

BACKGROUND

Twenty-three-year-old Nicholas Picon died unexpectedly at home. On October 26, 2006, defendant Peter A. Benson, M.D., a forensic pathologist, performed a post-mortem exam on behalf of the San Mateo County Coroner's Office. Dr. Benson had performed post-mortem exams under contract with the county since 1968.

Dr. Benson found a "structural abnormality" in Nicholas Picon's heart during the course of the post-mortem exam. Dr. Benson decided to retain the heart for further examination. He also ordered toxicology tests.

Three days later, Dr. Benson reexamined the heart. He took tissue samples and sent them to an outside laboratory for preparation of biology slides.

By November 9, 2006, Dr. Benson had received the biology slides and the toxicology test results ("negative for drugs and medication"). Dr. Benson concluded the cause of death was "probable cardiac dysrhythmia due to intramural tunneling of the left anterior descending coronary artery." Dr. Benson, however, intended to send the heart to a heart pathology specialist at Stanford University to confirm his findings.

Meanwhile, the coroner's office had released Nicholas Picon's body, and his mother, plaintiff Isolina Picon (Picon), buried his remains on October 30, 2006. According to Picon, no one from the coroner's office informed her that her son's heart had been retained. When she learned the coroner's office had retained the heart, she asked for its return. The coroner returned the heart on November 20 or 21, 2006.

Picon sued the County of San Mateo, County Coroner Robert Foucrault, and Dr. Benson. She purported to state causes of action for (1) "denial of quasiproperty right to control the remains of a deceased person," and (2) negligence. Picon alleged that Dr. Benson's retention of the heart was "unauthorized." She believed Dr. Benson had retained the heart for his own "self serving interest" and so that it could be released to Stanford University. Her amended complaint states Dr. Benson was "intrigued by the rarity of the heart condition that ultimately led to [her son's] untimely death." Foucrault was to blame for allowing Dr. Benson "unfettered freedom." Thus Foucrault (and presumably the county, too) "became vicariously liable for Dr. Benson's actions."

The defendants moved for summary judgment. Foucrault and the county argued that retention of the heart was authorized by state law, and that they were also immune from liability for discretionary acts under the applicable provisions of Government Code*fn1 sections 815 and 820.2. Dr. Benson similarly argued his actions were authorized by state law, and that he had no duty to obtain Picon's consent before retaining her son's heart.

In opposition to defendants' motions, Picon submitted an expert declaration that cast doubt on Dr. Benson's conclusions and his need to retain the heart. Judy Melinek, M.D., a forensic pathologist, believed Nicholas Picon did not die from coronary artery tunneling. In her opinion a viral infection that had spread to his heart had led to his death. Dr. Melinek did not "understand why the entire heart organ was retained in this case." She opined, "There was no clinical diagnostic reason that I could see that would necessitate the retention of Nicholas Picon's entire heart organ."

The trial court denied defendants' motions, finding a disputed issue of fact as to why defendants had retained the heart. The trial court concluded: A reasonable trier of fact, based upon the conclusions of Dr. Melinek, could infer that Dr. Benson did not need the entire heart organ to ascertain cause of death, and thus that there were other reasons why the heart was retained.

DISCUSSION

Standard of Review

An order denying a motion for summary judgment may be reviewed by a petition for peremptory writ. (Code Civ. Proc., § 437c, subd. (m)(1).) The standard of review is the same regardless of whether the trial court grants or denies a summary judgment motion. "Rulings on such motions are examined de novo." (Buss v. Superior Court (1997) 16 Cal.4th 35, 60.)

"We review summary judgment appeals by applying the same three-step analysis applied by the trial court: First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that is, whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact." (Hawkins v. Wilton ...


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