Cremation Not Spoliation

Headnote summary of a decision today from the Maryland Court of Special Appeals

SPOLIATION

The lawful cremation of a family member’s remains is not an “act of destruction” in the spoliation context, nor did a mother’s decision to cremate her son’s remains evince an intent to destroy evidence. When an individual who has authority to make decisions about the appropriate disposition of a decedent’s remains chooses to obtain a private autopsy and subsequently have the remains cremated, the person with authority has no duty to preserve evidence from the body, nor does the person with authority have an obligation to permit other individuals to participate in the autopsy. When a person authorized to have a decedent’s remains cremated chooses to do so without having informed potential defendants in a subsequent medical malpractice case, the authorized person has not engaged in spoliation.

MEDICAL MALPRACTICE – EXPERT TESTIMONY – CAUSATION

In medical malpractice cases, expert testimony is generally required to establish a breach of the standard of care and causation. In this case, no single witness testified that a nurse’s breach of the standard of care caused the decedent’s death, but the expert testimony of a nursing expert and a surgeon expert, when considered together and in conjunction with other evidence presented at trial, was sufficient to establish the element of causation and permit the claim to go to the jury.

The mother of the deceased had sued for wrongful death and prevailed. Her son had died

five days after a surgical procedure to reverse his colostomy.

(Mike Frisch)