Rob Perez

Raising Cane

By Rob Perez

Mishandling of remains
results in suffering

The final moments family members spend with a deceased loved one before burial or cremation usually are marked by emotions of sadness and sobering reflection.

In that last glimpse before saying goodbye, the family also gains a measure of comfort, knowing their loved one finally is at rest.

For Malcolm Akiona, his final glimpse of his mother was anything but comforting, anything but sobering.

What he and a relative saw in September 1995 at the Maui County morgue was gruesome and horrifying.

Barbara Akiona's body was bloated, partially decomposed and discolored, according to a Hawaii Supreme Court ruling in a lawsuit filed by the family following the incident.

Their deceased mother's face was purple, her eyes were bulging, her tongue was swollen and partly protruding. Her veins appeared to be black.

That wasn't the sight her family had expected.

The corpse had been delivered to the morgue at Maui Memorial Hospital on a Saturday, the same day Akiona died and a day after she was admitted to the hospital. The corpse was taken to the morgue for refrigeration -- used to substantially slow decomposition of human tissue -- pending testing and a possible autopsy. But somebody left the body outside the morgue's refrigeration unit over the weekend.

By the time a funeral home employee went to retrieve Akiona's body on Monday morning, it had deteriorated so badly that the family had to cancel plans to hold an open-casket funeral, as the mother had wanted.

The family eventually sued the hospital, Maui county, the coroner and the person who delivered the body to the morgue, seeking damages for, among other things, negligent infliction of emotional distress.

A state judge in 1998 dismissed the case, agreeing with the defendants that Hawaii law prevented such emotional distress claims over the mishandling of a corpse.

But the family appealed, and the Hawaii Supreme Court last summer vacated the ruling and remanded the case back to the lower court, where the lawsuit is pending.

The high court, agreeing with the plaintiffs, said the law cited by the defendants did not apply in this case because a corpse is not considered property for purposes of the law.

In passing the state statute in 1986, the Legislature said no party shall be liable for negligent infliction of serious emotional distress if the distress arises solely from damage to property or material objects.

The plaintiffs had argued that a corpse was not considered property within the meaning of the Hawaii statute because a body cannot be sold or transferred and has no utility except to be interred or cremated. The high court basically agreed.

Attorney Chris Ferrara, who represents the family, said the Supreme Court ruling was significant because it establishes that mortuaries and others can be sued for emotional distress if they mishandle corpses.

If his clients had lost the appeal, mortuaries would have been off the hook for malpractice in similar cases, Ferrara said.

"They had a free ticket before this," he said.

Mishandling of corpses, however, is almost unheard of in Hawaii, say industry representatives.

"It is a very rare problem," said Carrie Ordonez, a director of the Hawaii Allied Memorial Council, a group representing cemeteries and vendors.

Kenneth Ordenstein, spokesman for the Hawaii Funeral Directors Association, said his profession takes great care in dealing with corpses and grieving family members.

"We truly understand the sensitive and important nature of the work we're engaged in," Ordenstein said.

The Akiona case is the second one since the early 1980s that Ferrara has handled involving a corpse that wasn't properly handled or treated.

In the previous case, the casket containing a young child's body began leaking at the funeral service because the corpse wasn't embalmed properly, Ferrara said. An out-of-court settlement was reached with the Hawaii mortuary involved.

The abuse of corpses has gained national attention in recent months, largely because of the Georgia case in which a crematory operator allegedly was paid for hundreds of cremations he did not perform. Scores of bodies have been discovered around his crematorium.

Closer to home, members of a Big Island family who own a Hilo mortuary are under investigation for allegedly burying bodies without caskets.

In the Akiona case, the funeral home immediately embalmed her body after it was discovered in an advanced stage of decay, which created a health hazard. The embalming prevented further short-term decomposition, but it did not alter the appearance of the body, effectively precluding an open-casket funeral.

An attorney for Maui Memorial Hospital declined comment. Phone calls to attorneys for the county and Haines Burt Freeland, who delivered the body to the morgue, were not returned.

In court documents, however, the defendants disputed the family's allegations, with one even suggesting that the family's negligence could have been a contributing factor to any possible damages.

Despite such denials, it's clear that Barbara Akiona's family suffered because of what happened.

Somebody should be held accountable for that.

Star-Bulletin columnist Rob Perez writes on issues
and events affecting Hawaii. Fax 529-4750, or write to
Honolulu Star-Bulletin, 500 Ala Moana Blvd., No. 7-210,
Honolulu 96813. He can also be reached
by e-mail at:

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