BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                       SB 1189|
          |Office of Senate Floor Analyses   |                              |
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                                   THIRD READING 


          Bill No:  SB 1189
          Author:   Pan (D) and Jackson (D)
          Amended:  4/26/16  
          Vote:     21 

           SENATE HEALTH COMMITTEE:  6-2, 4/20/16
           AYES:  Hernandez, Mitchell, Monning, Pan, Roth, Wolk
           NOES:  Nguyen, Nielsen
           NO VOTE RECORDED:  Hall

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 5/27/16
           AYES: Lara, Beall, Hill, McGuire, Mendoza
           NOES: Bates, Nielsen

           SUBJECT:   Postmortem examinations or autopsies:  forensic  
                     pathologists


          SOURCE:    Union of American Physicians and Dentists

          DIGEST:  This bill requires a forensic autopsy to only be  
          conducted by a licensed physician. 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.

          ANALYSIS:  
          
          Existing law:









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          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  
            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 only be conducted by a licensed  
            physician and surgeon.  

          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  








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            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.

          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.

          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  








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            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  
            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  








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            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 District Attorney's (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  
            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  








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            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.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes 


          According to the Senate Appropriations Committee:


          1)Potentially significant state reimbursement costs, due to the  
            requirement in the bill that a licensed physician determine  
            the cause and manner of death (General Fund). 


          2)By requiring a physician to determine the manner of death in  
            cases where there is a forensic autopsy, the bill may impose  








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            additional costs on coroner's offices to have physicians  
            review information developed by investigators and make the  
            final determination of the manner of death. Whether the  
            Commission on state mandates would rule that this requirement  
            imposes a higher level of service (and is therefore  
            reimbursable by the state) is unknown. If the Commission did  
            rule that the bill imposes a reimbursable mandate, the costs  
            to the state could be considerable. The hourly rate to employ  
            or contract with pathologists is significantly higher than the  
            costs for investigators. The statewide costs to require  
            pathologists to make the determination of the manner of death  
            could be in the millions per year.


          SUPPORT:   (Verified5/27/16)


          Union of American Physicians and Dentists (source)
          Consumer Attorneys of California
          Medical Board of California
          National Association of Medical Examiners
          Three individuals


          OPPOSITION:   (Verified5/27/16)


          California Hospital Association 
          California State Coroner's Association
          California State Sheriffs' Association


          ARGUMENTS IN 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  








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          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 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.

          ARGUMENTS IN 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. 
          

          Prepared by:Melanie Moreno / HEALTH / (916) 651-4111
          5/31/16 9:46:51


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