Autopsy: Importance in Litigation

Lee S. Goldsmith, M.D. LLB

If a friend or loved one dies within 24 hours after entering an emergency room:


That is the only way you will ever really know the cause of death and probably the only way that we as attorneys will be able to help you achieve justice. 

The laws concerning autopsies vary state by state.  New Jersey’s position is vague: “...when a person’s death is unexpected and the cause of death is not immediately known, the death is investigated by the Medical Examiner.” 

New York itemizes reasons for an autopsy and that includes: “...while under the influence of anesthesia...”; “...occurring within 24 hours of entry to a hospital...”; “Sudden Deaths” etc.

Many physicians do not want autopsies performed because it may expose their negligence and these physicians will provide a “cause of death” that can be accepted but is not accurate.  Without an autopsy there is no way of proving otherwise. 


Ask your self the following:

  1. Was the death unexpected?
  2. Did the death occur in an Emergency Room?
  3. Did the death occur within 24 hours after seeing a physician?
  4. Did the death occur during or immediately after an operation?
  5. Were the treating physicians open and willing to communicate?

If an autopsy is suggested by the physician who is present, accept the recommendation.  If the death occurs under any of the above situations and no autopsy is suggested, ask for the case to be reviewed by a medical examiner.

If the Medical Examiner declines to do an autopsy you can get a private autopsy at your expense.  Ask the Medical Examiner’s office of this possibility if you feel you have unanswered questions.  Ask the physician in the Emergency Room about a referral for a private autopsy. 

A final option is calling an attorney who specializes in medical issues.  There are many of us around the country and we try to be helpful.