BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 1189
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|AUTHOR: |Pan and Jackson |
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|VERSION: |As Proposed to be Amended |
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|HEARING DATE: |April 20, 2016 | | |
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|CONSULTANT: |Melanie Moreno |
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SUBJECT : Postmortem examinations or autopsies: forensic
pathologists
SUMMARY :1. Requires a forensic autopsy to be considered the practice of
medicine and to only be conducted by a licensed physician who
has expertise in forensic pathology or has been trained as a
forensic pathologist. Requires all persons in the autopsy suite
to have current bloodborne pathogen training and personal
protective equipment in accordance with existing law for health
and safety purposes. Prohibits, if an individual dies due to the
involvement of law enforcement activity, law enforcement
personnel directly involved with the care and custody of that
individual from being involved with any portion of the
postmortem examination nor allowed inside the autopsy suite
during the performance of the autopsy.
Existing law:
1)Requires a county coroner to inquire into and determine the
circumstances, manner, and cause of certain deaths. Requires a
county coroner, under certain circumstances, to perform, or
cause to be performed, an autopsy on a decedent.
2)Imposes certain requirements on a coroner conducting a
postmortem examination or autopsy on conducted at the
discretion of a coroner, medical examiner, or other agency
upon an unidentified body or human remains.
3)Permits a county Board of Supervisors to consolidate the
duties of certain county offices in one or more of specified
combinations, including, but not limited to, sheriff and
coroner, district attorney and coroner, and public
administrator and coroner. Permits a county Board of
Supervisors to abolish the office of coroner and provide
SB 1189 (Pan) Page 2 of ?
instead for the office of medical examiner (ME), as specified,
and requires the ME to be a licensed physician and surgeon
duly qualified as a specialist in pathology.
4)Makes it a crime for any person to practice or attempt to
practice, or to advertise or hold himself or herself out as
practicing, any system or mode of treating the sick or
afflicted in this state, or to diagnose, treat, operate for,
or prescribe for any ailment, blemish, deformity, disease,
disfigurement, disorder, injury, or other physical or mental
condition of any person, without having at the time of so
doing a valid, unrevoked, or unsuspended license as a
physician or without being authorized to perform the act
pursuant to a certificate, punishable by a fine up to $10,000,
by imprisonment, or by both the fine and either imprisonment.
This bill:
1)Requires a forensic autopsy to be considered the practice of
medicine and to only be conducted by a licensed physician who
has expertise in forensic pathology or has been trained as a
forensic pathologist.
2)Defines a forensic autopsy as a medical examination of a body
of a decedent to generate medical evidence for which the cause
of death is determined.
3)Defines a postmortem examination as the external examination
of the body where no cause of death is determined.
4)Requires all persons in the autopsy suite to have current
bloodborne pathogen training and personal protective equipment
in accordance with existing law for health and safety
purposes.
5)Permits police and other law enforcement personnel who have
completed training described in 4) above to be allowed into
the autopsy suite at the discretion of the forensic
pathologist.
6)Prohibits, if an individual dies due to the involvement of law
enforcement activity, law enforcement personnel directly
involved with the care and custody of that individual from
being involved with any portion of the postmortem examination
nor allowed inside the autopsy suite during the performance of
the autopsy.
SB 1189 (Pan) Page 3 of ?
7)Requires police reports, crime scene or other information,
videos, or laboratory tests that are in the possession of law
enforcement and are related to a death that is incident to law
enforcement activity to be made available to the forensic
pathologist prior to the completion of the investigation of
the death.
8)Makes conforming changes to other portions of the Government
Code that references autopsies.
9)Prohibits this bill from being construed to limit the practice
of an autopsy for educational or research purposes.
FISCAL
EFFECT : This bill has not been analyzed by a fiscal committee.
COMMENTS :
1)Author's statement. According to the author, autopsy reports
are valuable documents that should be accurate and unbiased. A
medically trained physician or surgeon, particularly one
trained in forensic pathology, is best equipped to determine
the cause of death and provide an accurate report. Clarifying
that a medically trained professional should be the one who
conducts the autopsy also leaves out ambiguities in current
law. Equally important is the safety of the coroners and
others in the autopsy room. By requiring all personnel to wear
protective gear and to get proper training in blood borne
pathogens, health risks and contamination of the results are
significantly reduced. SB 1189 ensures that coroners are
protected and able to conduct precise autopsy reports.
2)Sheriff-coroner vs. coroner/ME. Fifty of California's 58
counties have sheriff-coroner offices, which means that the
two offices are consolidated and the sheriff also serves as
the coroner. The other eight counties (Calaveras, Inyo, Los
Angeles, Sacramento, San Diego, San Francisco, San Mateo, and
Ventura) have a coroner or ME that is separate from the
sheriff. Counties that do not have a separate ME or coroner
either contract with another local agency for sheriff-related
cases (for example, Marin has an interagency agreement with
Napa to perform that county's autopsies), contract with a
private independent pathologist, or employ a physician that is
not a fulltime pathologist, but does this work on a
case-by-case basis. Nothing in statute requires a coroner's
SB 1189 (Pan) Page 4 of ?
autopsy to be performed by a physician, but most (if not all)
counties follow National Association of Medical Examiners
(NAME) standards, which call for physicians to conduct
autopsies. In those counties that have abolished the
coroner's office and instead provide for a ME (San Francisco,
San Diego, Ventura, and Los Angeles), the ME has the same
powers and duties of a coroner, but the ME is required to be a
physician.
3)Ventura County ME investigation. In May 2015, Ventura County
relieved their medical examiner of three years of his duties
after it had come to light that in some cases, he was not
actually performing postmortem exams, but his signature still
appeared on death certificates. According to a special report
published in December 2015 by the Ventura County Star, records
show 17 postmortem exams were performed during the ME's
two-week vacation in May. A part-time contract pathologist was
listed as the pathologist on 13 of the death certificates and
the ME's name was on four. Those four died, received
postmortem exams, and their bodies were released for burial or
cremation before the ME returned from his vacation, but their
death certificates show that he certified cause of death for
three of the men. Emails exchanged between the ME and his
staff show that he directed an assistant without a medical
license to perform procedures on the men's bodies. For two
men, he instructed staff by email to cut open their abdomens
to take samples from internal organs. A whistleblower
initiated a complaint to the DA's office, which commenced an
investigation. The DA's investigation revealed that
non-physician staff at the ME's office had performed these
functions at least one other time as far back as 2013. The
investigation also revealed that the ME had been contracting
out his services while working for Ventura County to a private
company that provides pathology and autopsy services, as well
as Santa Barbara and Monterey counties. The conclusion of the
DA's report states that the investigation "?exposed the need
for legislation to clarify whether the performance of an
autopsy is included in the "practice of medicine."
Clarification is also necessary to define the terms "autopsy"
and "partial autopsy" and to clearly define the qualifications
and training required for forensic examiners who conduct such
procedures. The legislature must reconcile existing law that
allows non-physicians to serve as coroners."
4)Performance of autopsies. California statute does not define
SB 1189 (Pan) Page 5 of ?
the term "autopsy," but a 1970 opinion of the California
Attorney General states that an autopsy is "a form of
postmortem examination in which a dead body is examined and at
least partially dissected for the purpose of ascertaining the
cause of death, the nature and extent of lesions of disease,
or any other abnormalities present." This meaning seems to
align with other definitions of the term, however there is
dispute in the field regarding what specific actions
constitute an autopsy and regarding the dividing line between
collecting samples and performing an autopsy. The Ventura
County report consulted with San Bernardino's Chief Medical
Examiner (Frank Sheridan, MD) to provide an expert opinion as
to the practice of pathology, the definition of "autopsy" and
the "practice of medicine." Dr. Sheridan opined that the
following actions do not constitute the practice of medicine
and need not be performed by a licensed physician: extracting
vitreous fluid from the decedent's eye, extracting blood from
vessels, extracting urine from the bladder with a needle, and
making an incision in the quadriceps muscle to collect a
sample of tissue. Dr. Sheridan also stated there was no
consensus within the field of pathology that the
aforementioned procedures, which could be accomplished without
opening any internal cavities, would constitute performance of
an autopsy. He indicated these types of procedures could be
performed by a pathologists' assistant without a physician
present.
Dr. Sheridan opined that an autopsy occurs when an internal
cavity is opened and organs are examined and/or samples taken
for the purpose of determining the cause or manner of death.
He considers such actions to be the practice of medicine. He
feels there is consensus within the field of pathology on
these points. However, he is not aware of any law that
specifically requires such actions be performed by a licensed
physician, nor is he aware of any law that specifically
prohibits a pathologists' assistant from cutting into the body
and obtaining samples without a physician present. Dr.
Sheridan based his opinions in large part on the NAME
standards. However, he acknowledged that there is debate
within the field of forensic pathology as to whether these
standards should be considered best practices guidelines or
requirements that must be followed. He stated that
pathologists in smaller counties, with smaller budgets, do not
believe they can comply with NAME standards because of the
costs involved in doing so.
SB 1189 (Pan) Page 6 of ?
5)Practice of medicine. The practice of medicine is defined
differently by states in their respective practice acts, but
all the definitions are quite broad. They give physicians
great latitude in the therapies they provide, but they also
leave some uncertainty as to what actually constitutes
practicing medicine. California law is more broad than most
states, stating "?any person who practices or attempts to
practice, or who advertises or holds himself or herself out as
practicing, any system or mode of treating the sick or
afflicted in this state, or who diagnoses, treats, operates
for, or prescribes for any ailment, blemish, deformity,
disease, disfigurement, disorder, injury, or other physical or
mental condition of any person?"
With regard to autopsies, although forensic technicians,
laboratory assistants and other personnel may assist with
minor procedures, according NAME standards, only a forensic
pathologist or physician can determine the cause of death.
NAME standards require that a forensic autopsy must be
conducted by a licensed physician who is a forensic
pathologist, or by a physician who is a forensic
pathologist-in-training. Some procedures may be accomplished
by a trained technician, they can only be done in the physical
presence of a licensed pathologist. According to NAME
standards, the performance of an autopsy is the practice of
medicine. While physician organizations may argue that it's
the practice of medicine, California law is explicitly
contradictory in this sense, as it allows a sheriff-coroner to
conduct autopsies.
6)Support. The Union of American Physicians and Dentists write
that elected officials lack the medical expertise necessary to
perform a postmortem examination to the same degree as a
forensic pathologist, and this bill seeks to add further
legitimacy and authority to death investigations in coroner
cases. NAME writes that determining the cause and manner of
death should be performed by a medical professional with the
expertise to make those medical diagnoses. NAME furthers
states that MEs and forensic pathologists and deaths in
custody or associated with law enforcement personnel are some
of the most highly contentious deaths and can generate a
tremendous amount of public interest, and all affected parties
must be able to trust that the professionals investigating
these deaths are free of undue influence from the law
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enforcement personnel who may have been involved in that
individual's death. Consumer Attorneys of California writes
that 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 an autopsy.
7)Opposition. The California State Sheriffs' Association (CSSA)
writes that limiting law enforcement access to an autopsy
suite causes significant issues especially because many
autopsies are conducted because the death is potentially the
result of a criminal act. CSSA states that in such a case, 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. CSSA contends that while a
physician generally determines the cause of death, the manner
of death is a determination often made by the coroner in
concert with other individuals, including the pathologist, and
the coroner's role in making this determination should not be
removed.
SUPPORT AND OPPOSITION :
Support: Union of American Physicians and Dentists (sponsor)
Consumer Attorneys of California
National Association of Medical Examiners
Three individuals
Oppose: California Hospital Association (oppose unless
amended)
California State Sheriffs' Association
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