Having an autopsy performed on a deceased loved one can be scary for many people. However, autopsies can provide many answers to questions that loved ones may have after a person passes. There are a multitude of reasons/benefits as to why a family would want to have an autopsy performed — understanding why and how a death occurred, clarity, closure, and serving as a key and crucial piece of evidence if the family chooses to pursue a medical malpractice claim. An autopsy is the ultimate quality assessment tool in understanding the exact cause and circumstances surrounding a death.[1] This tool can assist a family in providing closure as they traverse the difficult process of dealing with a loved one’s passing. Furthermore, because it is considered the “gold standard” in determining why a person died, it can be used as a key piece of evidence in advancing a medical malpractice claim. At times, an autopsy can identify “the smoking gun” of what a physician did wrong.

In an earlier blogpost we highlighted the fact that research is indicating that medical error is the third (3rd) leading cause of death in the U.S. Autopsies used to be commonplace in the first part of the 20th century. According to the Wall Street Journal, in the 1960’s, people who died in hospitals had an autopsy performed around 50% of the time. Today, that number is less than 5%.[2] According to one study, 10%-30% of autopsies reveal previously undiagnosed medical issues. 24% of autopsies reveal a major missed diagnosis.[3]

The ramifications for this are huge. The Federal Agency for Healthcare Research and Quality found that when patients were autopisied, major errors related to the principle diagnosis or underlying cause of death were found in one in four cases. In one in ten cases, the error appeared severe enough to have led to the patient’s death. [4]These studies shine more light onto a reason to have an autopsy performed: scientifically establishing the exact cause of a person’s death. Knowing how and why a person died can greatly assist families in moving forward in the future.

People often ask if a death certificate carries the same weight as an autopsy. The short answer is no, it does not. A death certificate is a doctor’s best guess as to why a person passed. It is not scientific or exact in manner but merely a best guess. Factoring in the above mentioned studies, we can deduce that doctors often miss the true cause of death. This may or may not be intentional but one thing can be certain, autopsies are not guesses. They are the gold standard when it comes to determining the underlying causes of death.

Often times, families are asked to make quick decisions regarding autopsies. These are undoubtedly difficult decisions to make. Death is something that we can never predict. Even when we know that it is only a matter of time before someone passes, we never truly know exactly how and when it will occur. Moreover, when death does happen, doctors sometimes fail at adequately explaining why a patient died. They can either be overly busy that day, handling multiple extremely sick people. Sometimes they lack good communication skills. Other times, they take the death of a patient personally and feel as if they have failed them.[5] Regardless of the reasons why, a physician does not communicate how and why a patient passed. This is where an autopsy can be crucial in determining those causes.

In medical malpractice cases, plaintiffs maintain the burden of proof. Having evidence that directly attributes a physician’s negligence or error is essential to pursuing a claim. Autopsies can be the concluding piece of evidence needed to show if a doctor deviated from the standard of care, and if said deviation resulted in the patient’s untimely demise. On the flip side, not having an autopsy can potentially ensure that a claim never even makes it off the ground. 

Remember the following information should you choose to have an autopsy:

  1. Have an autopsy performed as quickly as possible. The general rule is the sooner the better. However, if you have not requested an autopsy and feel that it is too late, still make the request. Autopsies, even when performed after embalming, can still show crucial insights into why a person passed.
  2. It will cost money, and most insurance companies do not pay for it. However, the benefits heavily outweigh the costs in the big picture.
  3. It can help bring closure to you and your family.
  4. It can provide insight into hereditary ailments you might have.
  5. It can help researchers learn and study more about how to effectively treat diseases.

At Marc Stewart Law, we regularly receive calls regarding a decedent and a family’s questioning if medical negligence occurred, and if the alleged negligence contributed to the death of their loved one. Many times the case facts also sound like negligence occurred, but with no autopsy performed, we do not feel we have all the evidence we need to prove a claim, and therefore, do not pursue a claim. Should you or your family be facing the position of having an autopsy performed, we highly encourage you to discuss this option so when the time comes, a decision can be made quickly.

Compiled by Spencer Vereen

[1] "Autopsy 101." PBS. PBS, n.d. Web. 04 Nov. 2016.

[2] Beck, Melinda. "What Autopsies Can Teach." WSJ. Wsj.com, 09 Mar. 2015. Web. 07 Nov. 2016.

[3] Schiff GD, Kim S, Abrams R, et al. Diagnosing Diagnosis Errors: Lessons from a Multi-institutional Collaborative Project. In: Henriksen K, Battles JB, Marks ES, et al., editors. Advances in Patient Safety: From Research to Implementation (Volume 2: Concepts and Methodology). Rockville (MD): Agency for Healthcare Research and Quality (US); 2005 Feb. Available from: https://www.ncbi.nlm.nih.gov/books/NBK20492/

[4] Ibid

[5] Grady, Denise. "The Autopsy, a Search for Reassurance." Http://www.nytimes.com/2009/05/19/health/19seco.html. New York Times, 18 May 2009. Web. 7 Nov. 2016.

We need your help to protect all Arkansans from Tort Reform for Nursing Home & Malpractice Claims being considered RIGHT NOW. Please protect your rights and the rights of your family, friends, and community. Tell your senator to VOTE AGAINST SJR8!

SJR8 is a bill currently in the Arkansas Senate. It is intended to impose sweeping tort reform for cases involving medical malpractice and nursing home malpractice. Senators are saying that a groundswell of voices are calling for the measure. In truth, those voices are not so much a groundswell of grassroots constituents but instead lobbyists for insurance companies, nursing home chains, and hospital corporations.  They seek to impose special rules just for medical defendants. The biggest feature of reform is a $250,000 cap on non-economic damages suffered by a victim of malpractice after they have successfully proved their claim in court.

What are non-economic damages? Pain, emotional injury (like the death of your spouse or child), physical impairment (like being unable to walk), and disfigurement (like losing your leg to amputation).

I practice in other states that have a $250,000 cap on non-economic damages. In Texas, I recently resolved a case involving the death of a 4 year old girl. The ER doctor admitted in her deposition that she was unable to identify even the most basic anatomical structures on an abdominal x-ray. Yet, the case settled for just $137,000. Why? Because the little girl did not have a “lost wage claim” as she was just 4. Her life ended quickly, painfully, and tragically, which means we did not have a large claim for medical expenses incurred due to the negligent act of the doctor. The entire case revolved around the emotional destruction of her grieving parents…a damage claim which is artificially capped in Texas.

In the Pro-Life political campaigns, it is argued that all life is precious. It is true that all life is precious. Anyone with whom I speak agrees that the “value” of a child’s life should not be artificially capped just so that a negligent doctor or hospital can save money. Most people agree that the “value” of an elderly patient in a nursing home should not be minimized in court just so the nursing home can save money when a jury decides they acted negligently.

Why are these damage awards important?  They provide incentives for medical providers to pay attention to their patients, follow standards of care, and not to treat patients and nursing home residents as mere profit centers. We impose fines for traffic speeders to encourage all citizens to drive within the speed limit; without that fine, we would all drive a little faster. It is human nature. Therefore, we attach a penalty to unsafe conduct that keeps us all honest and creates safer communities.

Capping damages when an injured party is successful in court erodes the incentive system for safety. In Arkansas, tort reform for medical malpractice cases will encourage nursing homes to become less attentive; to hire less qualified personnel. Hospital nurses will not get as much annual training. Clinics will drive doctors to see more patients and spend less time on each one. Profit motives will creep farther into the decision making of these corporations and business entities. Medical care will diminish in quality.

For the proponents of tort reform, it is easy to bash lawyers. For me, it is hard to explain to the parents of a dead child that their kid is “worth” no more than $250,000 in court, no matter the facts of the case or how negligent the medical provider.

Use this link to get the contact information for your State Senator and Representative: 


Call your elected official and simply say, “As your constituent, I ask that you oppose SJR8 and any other tort reform measure. Thank you.”