BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 1189| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 1189 Author: Pan (D) and Jackson (D), et al. Amended: 8/19/16 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 SENATE FLOOR: 24-14, 6/2/16 AYES: Allen, Beall, Block, De León, Glazer, Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth, Wieckowski, Wolk NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Hall, Huff, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak NO VOTE RECORDED: Galgiani, Runner ASSEMBLY FLOOR: 79-0, 8/23/16 - See last page for vote 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 SB 1189 Page 2 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. Assembly Amendments (1) permit trained county personnel who are necessary to the performance of an autopsy, at the direction and supervision of a coroner, a medical examiner (ME), or a licensed physician and surgeon, to take body measurements or retrieve blood, urine, or vitreous samples from the body of a decedent; (2) permit only individuals who are directly involved in the investigation of the death of the decedent to be present during the performance; (3) require the manner of death, for purposes of this bill, to be determined by the coroner or ME examiner of a county. Requires the coroner, if a forensic autopsy is conducted by a licensed physician and surgeon, to consult with the licensed physician and surgeon in the determination of the manner of death; (4) permit individuals to be permitted in the autopsy suite for educational and research purposes at the discretion of the coroner and in consultation with any licensed physician and surgeon conducting an autopsy; (5) require all persons in the autopsy suite to be informed of the risks presented by bloodborne pathogens and that they should wear personal protective equipment, rather than requiring them to have current bloodborne pathogen training; (6) require an autopsy in any case where an infant has died suddenly and unexpectedly to be conducted pursuant to a standardized protocol developed by the Department of Public Health, rather than the Department of Health Care Services; and (7) delete some conforming changes that were made in the Senate to other portions of the Government Code that references autopsies. ANALYSIS: Existing law: 1)Requires a county coroner to inquire into and determine the SB 1189 Page 3 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, ME, 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 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. Requires the results of a forensic autopsy to only be determined by a licensed physician and surgeon. 2)Defines a forensic autopsy as an examination of a body of a decedent to generate medical evidence for which the cause of death is determined. Permits trained county personnel who are necessary to the performance of an autopsy, at the direction SB 1189 Page 4 and supervision of a coroner, an ME, or a licensed physician and surgeon, to take body measurements or retrieve blood, urine, or vitreous samples from the body of a decedent. 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 be informed of the risks presented by bloodborne pathogens and that they should wear personal protective equipment, as specified. 5)Permits only individuals who are directly involved in the investigation of the death of the decedent to be present during the performance. 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 physician and surgeon who conducts the autopsy 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 SB 1189 Page 5 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 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 an 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 ME 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 SB 1189 Page 6 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 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 SB 1189 Page 7 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes According to the Assembly Appropriations Committee: 1)The Department of Consumer Affairs reports that this bill will have no fiscal impact. 2)Potential minor reimbursable mandated costs, but so minor that it is doubtful a mandate claim will be submitted. SUPPORT: (Verified 8/23/16) SB 1189 Page 8 Union of American Physicians and Dentists (source) Consumer Attorneys of California Medical Board of California National Association of Medical Examiners Three individuals OPPOSITION: (Verified 8/23/16) None received 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 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. ASSEMBLY FLOOR: 79-0, 8/23/16 AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, SB 1189 Page 9 O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon NO VOTE RECORDED: Gordon Prepared by:Melanie Moreno / HEALTH / (916) 651-4111 8/23/16 20:06:40 **** END ****