Senate bill to legally define 'forensic autopsy' making its way through Assembly

A bill that would resolve ambiguities in California law by defining who may perform a forensic autopsy has received the support of Ventura County District Attorney Gregory D. Totten and the California District Attorneys Association.

The bill, SB 1189, passed the Senate and is now making its way through the Assembly. Totten has supported the bill since an investigation of the Ventura County Medical Examiner's Office revealed an unlicensed investigator was performing autopsies while the medical examiner was on vacation.

Existing state law does not address the issue of whether a medical examiner has the power to appoint a non-physician deputy to conduct autopsies, nor does the state have a clear legal definition for the term "autopsy," so no criminal charges were filed against the Ventura County Medical Examiner's office.

"We were surprised to learn there was no requirement in California law that an autopsy be performed by a physician, so this bill takes a giant step forward," Totten said. "Cause of death is always something we deal with in homicide cases. Circumstances regarding both the mechanism of death and the cause of death are factors that we have to prove in a homicide prosecution, so we rely on medical examiners for testimony. It's important to us that the autopsy be performed by someone qualified."

Senator Hannah-Beth Jackson, D-Santa Barbara, and Senator Richard Pan, D-Sacramento, a practicing physician, are co-authors of the bill.

"For many families, autopsies are an important part of the process of seeking peace of mind after a loved one has passed," said Pan in a statement.

The discovery that a number of Ventura County autopsies were done by unlicensed medical staff "has brought understandable distress and anger to families, eroded the public's trust, and raised a number of important questions about how we conduct postmortem exams," Jackson said in a statement.

At present, there is no legal definition of what specific actions constitute an autopsy. Instead, there is dispute within the field over the dividing line between performing an autopsy and collecting samples.

SB 1189 defines the term "forensic autopsy," as "an examination of a body of a decedent to generate medical evidence for which the cause and manner of death is determined." It's distinguished from a "postmortem examination," defined as "the external examination of the body where no manner or cause of death is determined."

In addition to requiring that all forensic autopsies be performed by physicians, SB 1189 would also require police reports, crime scene photos and videos or other information to be provided to the medical examiner prior to the completion of the death investigation. Further, law enforcement officials directly involved in a death ? either a death suspected to be caused by police or one that occurs in custody ? could no longer be present in the autopsy suite.

The California State Sheriffs' Association has opposed the bill's limits on law enforcement access to the autopsy suite, arguing that in cases when the death is potentially the result of a criminal act, "the body being examined is, and/or contains, evidence and the presence of law enforcement is crucial to maintain care and custody of that evidence."

The bill has the support of the National Association of Medical Examiners, but the California State Coroner's Association is opposed.

Fifty of California's 58 counties employ a sheriff-coroner who is an elected official, rather than a medical examiner who is a licensed physician. A coroner, the Sheriffs' Association argues, is often charged with making the determination of the manner of death, in concert with a physician's determination of the cause of death, and this bill would remove the coroner's role.

Consumer Attorneys of California (CAOC), a supporter of the bill, is in favor of the provision limiting law enforcement access to autopsy facilities. "CAOC members have represented the families of individuals who have been injured or killed as the result of law enforcement actions," the organization said in a statement. "We believe it is a conflict of interest to allow the law enforcement personnel, a potential defendant in a civil or criminal action, to be allowed inside the autopsy room during the performance of the autopsy."

"Sometimes the cause of death in even non-criminal cases is exceedingly important," Totten said. "That's why the responsibility of a medical examiner is a very solemn and important duty that must be performed by qualified people."

lj_williamson@dailyjournal.com