BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 1189| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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: SB 1189 Page 2 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 SB 1189 Page 3 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 SB 1189 Page 4 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 SB 1189 Page 5 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 SB 1189 Page 6 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 SB 1189 Page 7 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 SB 1189 Page 8 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 **** END ****