Patients Can Finally Recover Their Amputated Limbs Under New Oregon Law
Oregonians of certain faiths will soon have a silver lining to an otherwise tragic loss. Next month, the State of Oregon will finally make it legal for hospitals to return the amputated limbs of patients after surgery.
While this may not matter to everyone, it's very different for the members of the Confederated Tribes of Warm Springs. This is a group of various indigenous nations of the Pacific Northwest, including the Chinook, Deschutes, and Paiute peoples. According to Wilson Wewa, the Paiute Tribe's oral historian, under tribal religious beliefs keeping one's body together is necessary for the transition to the spirit world.
Until now, Oregon state law prevented hospitals from returning amputated limbs (among other human remains) to patients and the families of the deceased. Hospitals such as St. Charles were instead only permitted to cremate remains before returning them, but this only sufficed for people of certain religions. It wasn't in line with the beliefs of many indigenous peoples.
As a result, many tribal members chose to forego critical or life-saving surgery, knowing that they wouldn't be able to get their body parts back. After activism from tribal members and working with the state's health care system, the Oregon legislature finally amended existing laws to allow hospitals to return body parts under certain conditions, piggybacking on a similar move by the state of Washington. Once the law goes into effect on September 24, Oregonians and tribe members alike will be able to receive back body parts under safe conditions for spiritual or cultural reasons.
The Pacific Northwest is an inch closer to bodily autonomy, but what about the rest of the nation? Can you own your body parts once they're surgically removed? Let's break down the law, should you ever find yourself in this grave situation.
Hospital Procedures for Amputated Limbs
What normally happens to a limb after amputation? Like with any non-essential organ or body tissue that is surgically removed, an amputated limb is considered to be medical waste. Since medical waste can potentially be a biohazard and public health risk, hospitals will have standard procedures in place for the disposal of limbs.
Typically, the limb will be stored in a biohazard bag or container right after the surgery to prevent contamination to and from the tissue. In some cases, such as when the limb was removed due to an infection, it might be sent to a pathologist who will try to determine the underlying condition. Throughout this process, the hospital is responsible for keeping detailed medical records that track where the limb was sent and what was done to it.
Once the hospital has determined that the limb is ready for disposal, the standard waste management procedures apply. These typically involve incinerating the limb, a process that ensures any pathogens and other biological hazards are destroyed. However, hospitals aren't usually required by law to do this. They usually get consent from the patient or their family before deciding how to dispose of the limb. Thus, it may be easier than you think to stop a limb from being incinerated, and even to request that it be returned to you.
Then What's the Issue With Keeping Your Tissue?
So, is it legal for hospitals to give your amputated limb back to you? Usually, yes. There's no federal law that says you can't have your limbs back. You can even own other people's organs, unless they're Native American. Though you can't sell vital organs or tissues for surgery or transplant, in most places you can sell your limbs, souvenir organs, and even whole bodies. Some states, like Louisiana, have their own state laws that ban private ownership of human remains. In the case of Oregon, it was state law that was banning hospitals from returning amputated body parts.
Boston University bioethicist George Annas opined that a concern would only arise if the patient had some sort of transmittable disease and if the body part in question was infected with a virus or bacteria. In that case, since it would put the public at risk of contagion, government public health officials would be justified in intervening.
Wake Forest Law School professor Tanya Marsh focuses on laws regarding the status, treatment, and disposition of human remains. In her 2015 treatise titled The Law of Human Remains, Professor Marsh writes that when doctors "don't want to do something, they'll tell people it's illegal. That doesn't mean it's illegal," but patients will just believe them and cave.
So basically, you should always ask. And you should know your rights.
Of course, just because returning a limb isn't illegal doesn't mean that a hospital has to give it back to you. This is especially true when a hospital has written internal policies that forbid the return of removed body parts. Another consideration is that the body part may not stay intact after removal, and might even be destroyed. If it doesn't naturally disintegrate, it could be sent to a pathology lab for biopsy where it is sliced up for examination. In such a case, you would have a hard time holding the hospital legally accountable for failing to preserve your limb or for declining to return it to you.
On the other hand, if your loved one's bodies or organs were mishandled or even completely lost by the people they were entrusted to, that's a different issue. In that case, you would be eligible for a civil suit under different possible legal theories, depending on what happened to the body and by whom. If a death occurred because of the mistake of a doctor, nurse, or hospital staff, you might look to a wrongful death or medical malpractice suit against one of these parties (usually, the hospital). Or, if the mortician mishandles the body of your loved one, you may have a civil claim for mortuary negligence.
- Can I Sell an Organ? (FindLaw's Learn About the Law)
- If I Lose a Limb, Can I Keep It? (FindLaw's Legally Weird)
- Understanding Informed Consent and Your Rights as a Patient (FindLaw's Learn About the Law)
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