(dissenting). The Commonwealth argues on appeal that the defendants, the office of the chief medical examiner (OCME) and its medical examiners, owed no duty to the plaintiffs, Marilyn and Joseph LeBIanc (the LeBlancs), under the circumstances of this case, to confirm that the remains released to the LeBlancs were, indeed, those of the LeBlancs’ son. Because the defendants did have that duty, I respectfully dissent.
As the majority correctly concludes, the OCME has a duty to *425properly identify a body over which it takes jurisdiction, and thus control, see G. L. c. 38, § 4, and a duty, after investigation or examination, to release the body to the person with the proper legal authority to receive it. See ante at 421-422; G. L. c. 38, § 13. These duties necessarily include a subsidiary duty to inform the person authorized to receive the body, here the next of kin, Joseph LeBlanc, Jr.’s parents, the LeBlancs, that the OCME has released to them the correct body.1 These duties do not cease the moment the OCME releases a body. When the OCME receives information that reasonably calls into doubt its initial identification — something one hopes would happen very rarely — it must investigate, as it properly did here, in order to fulfill its duty to identify the body. By the same token, at least where the OCME knows that the person authorized to receive the body is aware of the information calling the identification into doubt, in order to fulfill its duty to that person, it must inform him or her of the conclusion it has reached as a result of its investigation about the identity of the body.
In this case, the OCME released to the LeBlancs remains that the medical examiners had identified as those of Joseph Le-Blanc, Jr. After burying the remains, the LeBlancs, as part of a suit against the estate of the pilot for causing the plane crash that killed their son, requested and lawfully received a copy of the OCME’s official autopsy report. The report relates that the body, which was initially received by the OCME as an “unknown,” was in three bags: one containing the upper torso, the second containing the lower torso, and the third containing fragments of body parts commingled with aircraft parts. Identification was made by use of dental information. No information is reported on the physical characteristics of the body that might be relevant to its identification except the notation relating to circumcision. That autopsy report thus contained a physical description of the lower torso released to the LeBlancs, and buried by them, that was inconsistent with it being part of their son’s body, stating that the person whose lower torso was released to the LeBlancs was uncircumcised. As the majority states, it is “understandable *426that the plaintiffs, reading this report, and knowing that their son had been circumcised, could have been alarmed” by concluding that at least the lower torso delivered to them — and of course buried with the rest of the body in their son’s grave — was “not [that] of their son.” Ante at 422.
According to the complaint, the LeBlancs’ attorney “contacted the [OCME] and informed them of the LeBlanc’s concerns and the reasons thereforf],” reporting the discrepancy between the description of the remains contained in the autopsy report and the known anatomy of Joseph LeBlanc, Jr.’s body. In other words, the LeBlancs’ attorney put the defendants on notice of information that reasonably called into doubt their initial identification of the remains returned to the LeBlancs.2
Because the defendants have a duty to identify the remains, their receipt of this information required them to investigate in order to ensure that the remains were identified accurately. Alerted by the LeBlancs’ attorney to the doubt that reasonably existed in light of the autopsy report, the defendants recognized this duty. The defendants appropriately acted upon counsel’s communication: they investigated the matter, determined that the autopsy report contained an error and that the identification of the remains as those of the LeBlancs’ son was accurate, and, on or before April 3, 2002, see note 2, supra, corrected the autopsy report.
Once the defendants investigated the matter and determined that their initial identification was accurate, they could have fulfilled their duty to the LeBlancs by informing the LeBlancs that after investigation they had concluded that the remains released to the LeBlancs were indeed those of Joseph LeBlanc, Jr. This is what the defendants failed to do. While the defend*427ants understood the problem, and resolved it to their own satisfaction, the complaint alleges that they failed to inform the LeBlancs. As the motion judge stated, the complaint alleges that the “OCME never responded to the LeBlancs’ inquiries.” It is the defendants’ failure to inform the LeBlancs that breached the duty owed them.3
The majority attempts to avoid this conclusion by disaggre-gating the OCME’s legal responsibilities. The majority concludes that the OCME has met its obligations so long as it has identified a body internally within the OCME and has subsequently released that body to the person authorized to receive it. Ante at 422-423. This analysis is wrong. The OCME could not meet its obligations, in the first instance, by releasing to parents a body in a manner that reasonably left them in doubt as to its identity, even if it happened to be the right one. Likewise, the OCME cannot fulfill its duty upon learning that there is a reasonable basis, of which those parents are aware, for doubt as to its initial identification unless it informs the parents that after investigation it has, indeed, concluded that it delivered the remains of their son.
The majority also states that “nothing in the statute or the regulations . . . creates any initial or continuing duty of the OCME in issuing an autopsy report to the next of kin.” Ante at 423. The question here, however, is not whether the OCME has a duty to the next of kin to issue an accurate autopsy report. The duty at issue here is the duty to identify the body the OCME releases to the next of kin and to inform them of that identification. The facts alleged in the complaint are sufficient to allege a breach of that duty. I therefore respectfully dissent.4
The majority adverts to several issues that are not raised in *428this appeal, including the adequacy of the notice provided by the LeBlancs to the defendants and the foreseeability of the Le-Blancs’ exhumation and forensic testing of the remains.51 would leave these to be addressed in subsequent proceedings on remand below should the defendants choose to raise them.
Asrelevant here, the “person with the proper legal authority to receive [the body] includes] ... the next of kin.” G. L. c. 38, § 13, inserted by St. 1992, c. 368, § 2.
Although it is not part of the record we review on this motion to dismiss, the deposition testimony of the medical examiner who performed the autopsy, Dr. Abraham Philip, indicates that the OCME’s chief medical examiner in fact received the LeBlancs’ complaint and understood the issue raised by the autopsy report and communicated to the OCME by the LeBlancs’ attorney. Dr. Philip stated that the chief medical examiner, Dr. Richard J. Evans, told him that there had been a “complaint received” or there were “some issues with [the] autopsy report and the issue was about circumcised, uncircumcised.” Dr. Evans had checked the report and Dr. Philip’s autopsy notes and asked that Dr. Philip correct the report and write an affidavit. That affidavit was written on April 3, 2002, and the autopsy report was changed by crossing out “un” before “circumcised,” with the change initialed by Dr. Philip.
While again we do not consider discovery materials in reviewing the allowance of the motion to dismiss, there is no evidence before us that the LeBlancs’ attorney was notified of the correction to the autopsy report, nor does the Commonwealth purport to rely on any. Cf. ante at 422 n.8.
The majority finds no duty here. Ante at 423. Its opinion also contains broad dictum asserting that “the specific duties of the medical examiners with respect to the handling of the autopsy report” fall within the discretionary functions exception of G. L. c. 258, § 10(6). Ibid. As explained in the text, the duty allegedly breached here is not a duty to prepare an accurate autopsy report, nor is it a duty to correct an inaccurate autopsy report. If the majority means that § 10(6) provides the OCME with immunity from liability for *428the breach of its “specific duties” to identify and release bodies, see ante at 420 (asserting that the LeBlancs’ “claims are exempt from the Tort Claims Act by G. L. c. 258, § 10[¿>]”), its conclusion is without support. Such a rule would, among other things, immunize any OCME failure to identify a body or to release it to the person authorized to receive it as provided for by the statute. These functions are not discretionary. See G. L. c. 38, § 13. Cf. Sena v. Commonwealth, 417 Mass. 250, 255-259 (1994). And indeed, the Supreme Judicial Court’s recent decision in Macrelli v. Children’s Hosp., 451 Mass. 690, 695-697 (2008), indicates that parents do have a cause of action for breach of duties owed them under the statute, there the alleged negligent failure to return the organs of a child after an autopsy where retention was not reasonably necessary to determine the cause of death, but the organs were instead kept for purposes of teaching or research.
For example, the majority asserts that the LeBlancs did not inform the defendants that if the OCME did not respond, the LeBlancs would undertake an exhumation and forensic testing. This goes to the foreseeability of the costs incurred by the LeBlancs.