A Model Medical Examiner Law

Abstract

Background:

Legal systems for medicolegal death investigation in the United States are varied. A 1954 model medical examiner law was initially embraced by a few states but did not gain widespread support and was woefully inadequate. The 2009 National Commission on Forensic Science recommended the creation of an updated model medical examiner legislation.

Methods:

Various considerations for policymakers are explored.

Results:

A model law is proposed.

Background

Current medicolegal death investigation in the United States is a hodge-podge of various legal systems (1). Moreover, the statutes are often quite dated and appear cobbled together from various amendments over time.

The National Academies of Sciences have urged for the replacement of coroner systems by medical examiner systems in 1928, 1932, and 2009 (2). Many states have opted to replace their coroners with medical examiner systems, while other states created hybrid medical examiner systems without replacing their coroners, but instead to serve them; many states have a mix of systems.

The 1954 Model Postmortem Examinations Act was promulgated by the National Conference of Commissioners on Uniform State Laws (now the Uniform Laws Commission, ULC) (3). Its publication spurred several states to adopt medical examiner systems, but the pace of adoption fell off (4). In fact, the law was woefully inadequate. The National Association of Medical Examiners (NAME) has since contacted the ULC and twice they began the process, but each time they failed to move forward. The need for an updated model medical examiner law has been recommended by the National Commission on Forensic Science (NCFS) in 2017 (5).

Model medical examiner legislation has been the subject of a previous Academic Forensic Pathology article that has covered the subject more fully than here (6), but the author takes the opportunity to publish a “model law” here that can be a starting point for those who might try to establish a state system or update their own existing statutory scheme. Dr. deJong has published an article that discusses some political dimensions and other considerations (7).

A model law is presented here ( Table 1 ), rather than a uniform law that is to be adopted without change. It is not expected that all provisions presented here will be embraced and adopted. Provisions can be deleted or reworded and other provisions added to accommodate a jurisdiction’s specific needs and desires. This model law introduces a logical framework that is accessible to nonlawyers and a scaffold upon which other specifics can be hung. Some of the more important considerations are briefly mentioned here.

Table. 1.

A proposed model law is presented here by the author.

MODEL MEDICAL EXAMINER ACT
SECTION 1. PURPOSE SECTION 2. SHORT TITLE SECTION 3. IMPLEMENTATION SECTION 4. DEFINITIONS SECTION 5. [STATE] OFFICE OF THE CHIEF MEDICAL EXAMINER SECTION 6. JURISDICTION SECTION 7. INVESTIGATIVE AUTHORITY SECTION 8. DUTIES OF THE CHIEF MEDICAL EXAMINER SECTION 9. OCME STAFF SECTION 10. ACCREDITATION SECTION 11. [STATE] MEDICAL EXAMINER COMMISSION SECTION 12. SCENE INVESTIGATIONS SECTION 13. TRANSPORTATION OF BODIES SECTION 14. POSTMORTEM EXAMINATIONS AND AUTOPSIES SECTION 15. OBJECTION TO AUTOPSY SECTION 16. EXAMINATION AND RETENTION OF ORGANS AND TISSUES SECTION 17. DISPOSITION OF BODIES, REMAINS, AND PROPERTY SECTION 18. RESEARCH SECTION 19. RECORDS SECTION 20. RELEASE OF RECORDS AND DATA; INFORMATION DISCLOSURES SECTION 21. LIABILITY SECTION 22. APPEALS OF DEATH CERTIFICATIONS SECTION 23. EXHUMATIONS SECTION 24. FATALITY REVIEW TEAMS MODEL MEDICAL EXAMINER ACT SECTION 1. PURPOSE  The purpose of this act is to provide a modern statewide medicolegal death investigation system headed by a medical examiner to promote public health and safety. SECTION 2. SHORT TITLE  This Act shall be referred to as the [State] Office of the Chief Medical Examiner Act. SECTION 3. IMPLEMENTATION This Act shall take effect as of… The coroner system is hereby abolished as of… Sections contained herein replace all other provisions with which they overlap. If any provision of this Act is held invalid, such invalidity shall not affect other provisions or applications of this Act, which can be legally given effect without the invalid provisions or application, and to this end the provisions of the Act are declared severable. SECTION 4. DEFINITIONS Autopsy—An examination and dissection of a dead body by a physician for the purposes of determining the cause and manner of death, identifying the deceased, obtaining specimens for specialized testing, collection of physical evidence, or otherwise performed in the public interest. A full autopsy includes examination of the viscera from the head, neck, chest, abdomen, and pelvis. A partial autopsy includes an internal examination less than that of a full autopsy with removal of organs or tissues. An in situ dissection includes an internal examination without removal of organs or tissues. Body—A body of a dead human or part or remains thereof. Case—The medicolegal death investigation and/or examination of a given individual body or set of remains pursuant to this statute. Cause of Death—The underlying disease or injury responsible for setting in motion a series of physiologic events culminating in death. Child—A person of 1 year up to, but not including, 18 years of age. Direct Supervision—Supervision of personnel performing actions in the immediate presence of the supervisor. External Examination—A visual inspection or examination of a body prior to or without dissection of the body. A needle-stick for collection of blood or body fluid does not constitute a dissection for purposes of this article. An internal examination performed using radiologic, ultrasound, or other noninvasive means does not constitute a dissection for purposes of this article. Forensic Autopsy—An autopsy performed pursuant to a medicolegal death investigation authorized by this statute. Forensic Pathologist—A licensed physician who is board-certified or board eligible in forensic pathology by the American Board of Pathology or its international equivalent. Infant—A child of less than 1 year of age.
Investigation—An inquiry or exploration, whether slight or extensive, into a case, detail, or subject, whether by voice, written, electronic, telephone, visual, laboratory study, other means or combination of means Manner of Death—A nosologic classification of the death as natural, accident, homicide, suicide, or undetermined. Medical Examiner—A forensic pathologist of the Office of the Chief Medical Examiner who may investigate deaths, perform autopsies, and certify deaths. Medicolegal Death Investigator—An individual who is employed by a medicolegal death investigation system to conduct investigations into the circumstances of deaths within the jurisdiction of the Office of the Chief Medical Examiner. Next of kin—The apparent family member or the apparent representative of the family member responsible for the body or remains of the deceased person as defined elsewhere in these statutes for probate and inheritance distributions. Unattended Death—A death of a person not under the care of a health care provider authorized to sign a death certificate not under this Act within the last 6 months whether or not in the physical presence of the health care provider. SECTION 5. [STATE] OFFICE OF THE CHIEF MEDICAL EXAMINER The [State] Office of the Chief Medical Examiner is hereby established and referred hereinafter as the “OCME.” The OCME shall be independent and not situated within another agency. The OCME shall be headed by a Chief Medical Examiner, who is board-certified in forensic pathology, has at least 5 years of experience as a medical examiner, and is licensed in the state or licensed within 6 months of appointment. The OCME may maintain as many regional facilities as deemed necessary by the Chief Medical Examiner. The OCME shall be deemed a public health and public safety entity. Medical examiners and medicolegal death investigators shall be deemed first responders. The OCME buildings shall be recognized as health care facilities. The OCME shall be granted an originating agency identification number. The OCME shall be staffed sufficiently to carry out the purposes of this Act. The OCME shall promulgate rules and regulations necessary or appropriate to effectively carry out the provisions of this Act. SECTION 6. JURISDICTION Permissive Jurisdiction Medicolegal death investigations—OCME personnel may investigate the facts and circumstances concerning all human deaths within this state, regardless of where the cause thereof may have occurred and may perform an autopsy if the death appears to or thought possibly to be of a type listed herewith: deaths due to violence, known or suspected non-natural deaths, deaths occurring under unusual or suspicious circumstances, deaths due to toxins, poisons, medicinal or recreational drugs, or combinations thereof, unexpected or unexplained deaths when in apparent good health, deaths unattended by a physician, unexpected or unexplained deaths of infants and children, unattended stillbirths of at least 20 weeks gestational age, criminal abortions, and infant deaths within 24 hours of birth, deaths within 48 hours of admission to an emergency medical entity or health care institution, deaths allegedly resulting from medical intervention or therapeutic misadventure, deaths in-custody, arrest-related, or during police pursuit, deaths of law enforcement officers and firefighters in the line of duty, deaths from industrial accidents and occupational diseases, bodies prior to cremation, burial at sea, or disposal by other means than by burial, any unidentified or unclaimed body, deaths known or suspected to be caused by diseases constituting a threat to the public, and other cases of public interest. Clinical forensic medicine—OCME personnel may accept consultations requested from law enforcement to document injuries of live persons. Mandatory Jurisdiction Medicolegal death investigations—OCME personnel shall investigate the facts and circumstances concerning all human deaths within this state, regardless of where the cause thereof may have occurred, and perform an autopsy, if the death appears to be, suspicious of, or thought possibly to be, of a type listed herewith: apparent homicides, except judicial executions; deaths in custody by a government agency or representative, except in cases of apparent natural causes in institutional care; and where ordered to do so by the Chief Medical Examiner, Secretary of Health, or the Attorney General. Cremation reviews—OCME personnel shall perform cursory reviews of paperwork from the Department of Health to deny or permit cremations of bodies. SECTION 7. INVESTIGATIVE AUTHORITY In General—The OCME may perform all medicolegal death investigation necessary and proper to fulfill the duties of the office. Investigations may be conducted through telephonic inquiry. The OCME shall have sole jurisdiction of the body and take custody of the body, clothing, personal effects, and evidence on the body. Access to Death Scenes—OCME personnel may enter private and commercial premises without a warrant to access scenes of deaths for the purpose of obtaining the remains and the medicolegal investigation of the scene to determine the cause and manner of death. Scene investigations may be conducted at the location where a body or remains are discovered as well as other locations that are thought to bear upon the death of the individual. Access to Information—The OCME shall be given access to all information pertinent to the identification of the remains and the medicolegal death investigation, including: medical, mental health, drug, and alcohol treatment records; [State] prescription drug monitoring program records; emergency medical services reports; social work records; summary police reports; summary reports of investigations pertinent to death investigations; state fingerprint files; and driver’s license databases. Subpoena Power—The OCME shall have the power to issue subpoenas for information that shall be enforceable in court under threat of contempt of court charges. SECTION 8. DUTIES OF THE CHIEF MEDICAL EXAMINER The Chief Medical Examiner shall establish a system of procedures for deaths falling under its jurisdiction. The Chief Medical Examiner shall ensure that inquiry and investigation are made to determine jurisdiction and the need for further investigation, postmortem inspection, and autopsy of deaths, anticipated deaths, presumptive deaths where there is no body, and other deaths of which the OCME is notified. The Chief Medical Examiner shall establish procedures for medicolegal death investigation and shall conduct medicolegal death investigations within its jurisdiction to establish identity, cause of death, manner of death, and resolve any issues or potential issues of public health and legal concerns as identified by the Chief Medical Examiner. The Chief Medical Examiner shall ensure that death certificates are issued in all cases accepted by the OCME. No death certificate shall be issued in the absence of identified remains, except by court order or judicial decree. The Chief Medical Examiner shall ensure that testimony on cases of the OCME is provided in criminal cases without charge upon valid subpoena. Testimony in civil cases shall be pursuant to a fee unless waived by the Chief Medical Examiner. The Chief Medical Examiner shall ensure that educational programs are provided to law enforcement agencies, attorneys, teaching institutions, and the public. The Chief Medical Examiner shall publish an annual report each year that includes statistics on causes and manners of death. SECTION 9. OCME STAFF The OCME personnel shall include sufficient staff to fulfill the mission of the OCME and to maintain accreditation. The staff shall include at a minimum: Chief Medical Examiner Deputy Chief Medical Examiner Legal Counsel Public Information Officer Custodian of Records Forensic Epidemiologist Medical Examiner staff Clerical staff Autopsy Technician staff Photography staff Investigator staff Administrative staff Information Technology staff All OCME staff physicians employed by the OCME shall be licensed to practice medicine in the State. Medical examiners employed by the OCME shall be certified in forensic pathology by the American Board of Pathology or its international equivalent within 3 years of hire. Autopsy assistants may perform dissections under the supervision of an attending OCME medical examiner. Pathology residents and other students authorized by the OCME may perform dissections under the supervision of an attending OCME medical examiner. Forensic pathology fellows may perform autopsies and certify deaths under the supervision of an attending OCME medical examiner. Forensic pathologists licensed in other states may be permitted to perform casework in times of need. The state shall compensate such workers and provide liability protection as it would for its OCME employees. If such forensic pathologists should need to return to the state to testify, then they will be compensated by prosecutors or civil attorneys as other expert witnesses are compensated at fair market value. Medicolegal Death Investigators employed by the OCME shall be certified in medicolegal death investigation by the American Board of Medicolegal Death Investigators within 2 years of hire. The Chief Toxicologist employed by the OCME, if any, shall be a toxicologist with a Ph.D. degree and certified by the American Board of Forensic Toxicology. The Forensic Laboratory Director employed by the OCME, if any, shall be a forensic scientist with a Master’s of Forensic Science degree or higher and certified by the American Board of Criminalistics and forensic scientists employed by the OCME, if any, shall be certified by the American Board of Criminalistics within 3 years of hire. OCME employees may be allowed to assist other jurisdictions in emergencies provided that compensation for their time is agreed to in advance. SECTION 10. ACCREDITATION The OCME shall become accredited and maintain accreditation by the NAME. The toxicology laboratory, if any, shall become accredited and maintain accreditation by an accrediting body recognized by the forensic toxicology community. The forensic science laboratory, if any, shall become and maintain accreditation by an accrediting body recognized by the forensics community. SECTION 11. [STATE] MEDICAL EXAMINER COMMISSION The [State] Medical Examiner Commission is hereby established; hereinafter referred to as the “Commission.” The Commission shall be composed of nine members: Chair of the Department of Pathology, of the [State] Medical School or designee, who shall preside as Chair of the Commission, the [State] Chief Medical Examiner, a representative of the [State] Secretary of Health, a representative of the [State] Attorney General, a public defender chosen by the Governor, a representative of the [State] Funeral Directors Association, a physician chosen by the [State] Medical Association, a forensic pathologist from outside the state chosen by the Chair of the Commission, and an at-large member chosen by the Governor. The term of office of each commissioner shall be 4 years, unless he or she leaves his or her day position earlier, in which case his or her appointment will terminate. Upon expiration, the Governor shall appoint a new member. Members shall not receive any compensation for their services but shall be reimbursed for travel and expenses incurred in the performance of their duties. The Commission shall: meet at least once per year, appoint the Chief Medical Examiner, approve the fee schedule, issue and make public an annual report of the Commission, provide advice to the Chief Medical Examiner, and make recommendations to the Governor, the Secretary of Health, the legislature, or others as they see fit to make. SECTION 12. SCENE INVESTIGATIONS Scene investigations may be conducted by OCME Medicolegal Death Investigators for deaths in which the office takes jurisdiction. A report shall be generated for each case investigated. OCME personnel shall seize and take custody of all items of evidence or property, on the person of the decedent or at the scene, which is deemed necessary to the determination of the cause and manner of death or to assist in the identification of the decedent, not taken by law enforcement officials, including weapons, medicine vials, drug paraphernalia, and notes and documents. No body or remains of any dead body falling under the jurisdiction of the OCME, and the accompanying personal property of such deceased person, shall be disturbed, handled, moved or removed from the scene, except to preserve the body from destruction, and the scene shall not be disturbed except by law enforcement in the normal course of their duties without permission of OCME personnel. The OCME personnel shall respect and fully cooperate with law enforcement personnel, forensic laboratory personnel, crime scene technicians, and other authorities investigating the same case and they shall respect and fully cooperate with OCME personnel. Law enforcement personnel shall notify the Medical Examiner Office as soon as they become aware of a death falling within their jurisdiction and the OCME shall inform appropriate law enforcement officials before they begin their investigations. Law enforcement personnel shall cooperate with and not obstruct or bar entry of OCME personnel from access to and retrieval of the body. The OCME personnel may bar law enforcement personnel from access to the body but shall not restrict photography that does not unduly delay the work of the Medical Examiner Office. Evidence collected by one agency shall be made available to the other agency, except where testing is destructive and does not permit the further analysis by the other agency. SECTION 13. TRANSPORTATION OF BODIES The OCME shall be responsible for the transportation of the body and associated evidence from the place where the body is located to the Medical Examiner Office. Transportation of bodies and remains shall be accomplished with due respect for the deceased and the family. SECTION 14. POSTMORTEM EXAMINATIONS AND AUTOPSIES Death investigations, external examinations, autopsies, and ancillary testing and consultation shall be conducted as deemed necessary by OCME policy and the Medical Examiner in charge of the case. Laboratory analysis, procedures, and expert consultations, whether in-house or out-of-house, are performed as deemed necessary by OCME policy and the Medical Examiner in charge of the case. The Medical Examiner in charge of the case shall complete and issue a death certificate in all cases falling under the jurisdiction of the OCME. SECTION 15. OBJECTION TO AUTOPSY Upon notice of objection to an autopsy by the next of kin, the objection and need for autopsy shall be discussed with the next of kin. When in the opinion of a medical examiner, there is a compelling public necessity to perform the autopsy over the continued objection by the next of kin, the Medical Examiner in charge of the case shall discuss the case with the Chief Medical Examiner or Deputy Chief Medical Examiner. When in the opinion of the Chief Medical Examiner or Deputy Chief Medical Examiner, there is a compelling public necessity to perform the autopsy over the continued objection by the next of kin, the next of kin shall be given 48 hours to institute an action in a state court to prevent the dissection or autopsy; however, the court may dispense with the waiting period upon ex parte motion if it determines that the delay may prejudice the accuracy of the dissection or autopsy or may precipitate or prolong an immediate and substantial threat to public health or safety. The Chief Medical Examiner may request a prosecutor to represent the OCME and seek an action in court for an order authorizing the dissection or autopsy. After 48 hours and a continued belief by the Chief Medical Examiner or Deputy Chief Medical Examiner, there is a compelling public necessity to perform the autopsy over the continued objection by the next of kin, the OCME may proceed with the dissection or autopsy in the absence of a court order. If permission to perform a dissection or autopsy is denied and no stay is granted by the court or by the appellate division, the decedent’s body shall be immediately released for burial. Actions brought pursuant to paragraphs (C) or (D) of this section shall have preference over all other cases and shall be determined summarily upon the petition and oral or written proof, if any, offered by the parties. The court shall permit the dissection or autopsy to be performed if it finds that the objecting party fails to swear or affirm that an autopsy or dissection would be contrary to the decedent’s beliefs, the medical examiner established a compelling public necessity, or for other reasons. SECTION 16. EXAMINATION AND RETENTION OF ORGANS AND TISSUES The Medical Examiner in charge of the case may retain, examine, dissect, process, analyze, and test organs and tissues, including DNA specimens, from the body or remains or have such sent outside the OCME for examination, processing, analysis, testing, or consultation. The Medical Examiner in charge of the case may release organs and tissues to organ and tissue procurement organizations or permit the procurement of organs and tissues for transplant purposes upon an anatomical gift by the decent subject to the Uniform Anatomical Gift Act, consent of the next of kin or legal representative, or where the next of kin, after a reasonable search for them, is unknown or unable to be contacted within the time frame necessary for successful harvest and transplant. Information on decedents and next of kin may be exchanged between the OCME and procurement organizations. The Medical Examiner in charge of the case may release organs and tissues for education, research, quality control, or other purpose upon the written consent of the next of kin or legal representative, subject to the Uniform Anatomical Gift Act. SECTION 17. DISPOSITION OF BODIES, REMAINS, AND PROPERTY Upon approval by OCME personnel, bodies and remains may be released to the next of kin or other legal representative of the deceased. Unless an objection from the next of kin is known, any retained fluids, tissues, organs, and body parts shall be discarded as biohazardous waste. When an identified body remains unclaimed after 3 weeks, then the body may be released to a medical school or buried by the county in which the body is found, unless subject to the provisions of the Native American Graves Protection and Repatriation Act. A body remaining unidentified shall be held for at least 3 months. Dental examination and DNA collection shall be performed on all unidentified bodies, where possible. All personal articles and property of the deceased taken into possession by the OCME shall be catalogued and a written inventory maintained. Any articles not held for evidence shall be released to the next of kin or other legal representative of the deceased within 30 days of the completion of the investigation. If the legal representative of the deceased is in dispute, then the Medical Examiner Office shall retain the article or property until an executor or administrator is appointed by a court of competent jurisdiction. Biocontaminated items may be disposed of as biohazardous waste; items of no value may be disposed of. A receipt shall be obtained from the person taking custody of the body, remains, or property from the OCME. SECTION 18. RESEARCH Research is to be considered a mission of the OCME. The Chief Medical Examiner may approve research based upon a records review or involving 10 mL biologic fluid or 10 g tissue or less and resulting in deidentified data and shall be presumed minimal risk and consent waived. Other research shall be approved by an Institutional Review Board. SECTION 19. RECORDS The OCME shall generate and maintain records of: death notifications, investigations, postmortem inspections and examinations, autopsies, ancillary studies, and consultations, personal effects taken into possession, transportation and release of bodies and remains, fees collected, and any other information deemed necessary by the Chief Medical Examiner. The OCME shall generate and publish to the public an annual report. SECTION 20. RELEASE OF OCME RECORDS AND DATA; INFORMATION DISCLOSURES Autopsy reports are public information; other OCME case information is not. Autopsy reports may be released regardless of any on-going investigation. The following case data fields are public information: name race sex age cause of death manner of death place of death case identification number date of autopsy name of medical examiner performing the case The OCME shall establish a reasonable fee schedule. The OCME Custodian of Records may waive the fee in individual cases based upon need. Funds received from payment of these fees shall go to the State General Fund. Nonpublic case information and data shall not be subject to release, except subject to the following: subpoena or court order, or letter of nonlitigation by the primary next of kin, institutional review board authorization, public health or public safety governmental purposes, or authorized by law. The OCME may exchange decedent information, including next of kin information, with law enforcement officials, first responders, government investigators, providers, health care institutions, and organ and tissue procurement organizations. Medical information and photographs that have been anonymized may be respectfully presented in appropriate forums and published in appropriate journals. SECTION 21. LIABILITY Neither the OCME nor the OCME personnel or their representatives shall be liable for discretionary decisions made in good faith. Willful disclosure of confidential information or photographs by OCME personnel not authorized by the Chief Medical Examiner may be punishable by a fine of up to US$1000 per incident of release. SECTION 22. APPEALS OF DEATH CERTIFICATIONS The next of kin may request the medical examiner who signed the death certificate to change the determinations of cause and manner of death recorded on a certificate of death after the medical examiner files those findings and conclusions. The next of kin may appeal in writing the decision of the medical examiner who signed the death certificate to the Chief Medical Examiner to change the determinations of cause and manner of death recorded on a certificate of death within 90 days after the decision of the medical examiner who signed the death certificate. The next of kin may appeal the decision of the Chief Medical Examiner to an Administrative Judge to change the determinations of cause and manner of death recorded on a certificate of death within 90 days after the decision of the Chief Medical Examiner. The next of kin may appeal the decision of the Administrative Judge to a state court to change the determinations of cause and manner of death recorded on a certificate of death within 1 year of the signing of the death certificate. The death certificate shall be amended in accordance with the court order, but notated that the certification was pursuant to a court order. If the findings of the medical examiner are upheld by the Chair, the appellant is responsible for the costs of the contested case hearing. Otherwise, the OCME is responsible for the costs of the hearing. SECTION 23. EXHUMATIONS A Medical Examiner may conduct an exhumation to determine the cause or manner of death, investigate a public health or public safety matter, to obtain evidence, or to answer a medicolegal issue upon a court order after notice has been served upon the executor or administrator of the decedent’s estate or next of kin or legal representative of the deceased unless unknown or exigent circumstances exist. If the exhumation is to be performed in a known contested matter, both sides shall be given opportunity to witness the exhumation, postmortem examination and autopsy, if any. SECTION 24. FATALITY REVIEW TEAMS Fatality review teams shall be established and funded to review infant deaths, child deaths, elder abuse, domestic violence, occupational deaths, suicides, and other deaths as deemed necessary by the Chief Medical Examiner or the Secretary of the Department of Health. The purpose of the fatality review teams is to review the circumstances of death and governmental responsibilities with respect to those circumstances and to identify measures that might prevent other deaths. The Chief Medical Examiner or designee shall participate in all State death review teams. Disclosure of OCME records and information to fatality review teams is authorized. All information and records acquired by an authorized state or local fatality review team, in the exercise of its purpose and duties under this subtitle, are confidential and may only be disclosed as necessary to carry out the team’s duties and purposes. Statistical compilations of data that do not contain any information that would permit the identification of any person to be ascertained are public records. Reports of an authorized state or local fatality review team that do not contain any information that would permit the identification of any person to be ascertained are public information. Except as necessary to carry out a team’s purpose and duties, members of a team and persons attending a team meeting may not disclose what transpired at a meeting that is not public. Information, documents, and records of an authorized state or local fatality review team are not subject to subpoena, discovery, or introduction into evidence in any civil or criminal proceeding. Members of a team, persons attending a team meeting, and persons who present information to a team may not be questioned in any civil or criminal proceeding regarding information presented in or opinions formed as a result of a meeting. This subsection does not prohibit a person from testifying to information obtained independently of the team or that is public information. Information, documents, and records otherwise available from other sources are not immune from subpoena, discovery, or introduction into evidence through those sources solely because they were presented during proceedings of the team or are maintained by a team. Violation of this section is a misdemeanor and is punishable by a fine not exceeding US$500 or imprisonment not exceeding 90 days or both.

The NCFS recommendation (noted above) included a statement that such model legislation should include sections on mission/purpose, jurisdiction, structure, operations, administration, and “other” (5). Considerations for various issues are presented here in the following paragraphs.

Operational Mode

A government office is envisioned here, but an independent contract option is a viable option; public–private partnerships are yet another option.

Transitioning

Any legislation that intends to create a new organizational structure must pay attention to transitioning from the pre-existing scheme, whatever that is. What is going to happen while the new system is being setup? In the case of transitioning from a coroner system to a medical examiner system, it might be wise to use existing coroners as medicolegal death investigators and phase-in appointed American Board of Medicolegal Death Investigation (ABMDI) board-registered investigators.

Funding

How the new system is to be funded will be of great concern, particularly because medical examiner systems are not self-funding. If an existing system is funded from county coffers, then a move to a state system would be a windfall to counties, but a wholly new cost to the State budget, even though the transition is overall cost neutral. Larger state and regional systems are more efficient than small county operations. Moreover, it is unfair to have the poorest counties that usually have the most crime pay more for medicolegal death investigation than their neighboring counties.

Organizational Situs

Medical examiner offices can be sited as free-standing independent operations (e.g., Harris County), within departments of health (e.g., Maryland), within law enforcement agencies (e.g., Oregon), and within the state department of homeland security (e.g., Delaware, or within universities (e.g., New Mexico). The primary advantage of siting the office within an existing department is to make use of the administrative apparatus of the larger department but situating the office within a given department may also foster greater interaction, communication, access, and protection. The larger department is usually a health department which better understands physicians and avoids conflicts of police-involved cases. The advantage of an independent operation is unrestrained advocacy for resources. Language such as “in but not of” may be used to create an autonomous unit within the larger department which administratively supports it, but the larger department has relatively little incentive to advocate for it. This model legislation is of an independent office, which arguably has generally fared somewhat better than other systems.

Centralization v. Decentralization

The greater the centralization, the greater efficiency, but this may come at the expense of greater service. In general, the author favors single office state systems, with perhaps decentralization of medicolegal death investigation. A state may be able to afford only a single computed tomography (CT) scanner, in which case regionalization may result in no office having a CT scanner. On the other hand, single consultants, such as forensic anthropologists and forensic odontologists, may be able to travel regional circuits and thus service more than one office. If a jurisdiction is to have a regional system, then this author would recommend a State Chief Medical Examiner, who can speak for the organization, rather than independent regional offices with or without an oversight commission.

Oversight

Offices and systems must answer to someone or some group. Even when the office or system is overseen by a governing board, as a practical matter the Chief may still answer to someone else in the governmental structure, particularly when operating within a larger department. Some offices (e.g., Oregon) employ a governing board to provide a layer of independence. The author prefers advisory boards to governing boards but recognizes that there are advantages and disadvantages to each, but both engender political connections not possible without such structures. Oversight boards provide a healthy pressure for offices to not become complacent and they may also provide some political cover. However, when the office is sited within a department, then the Chief Medical Examiner may have to answer to two bosses.

Office Accreditation

The author would recommend that legislation requires office accreditation. Most government officials, bureaucrats, and policymakers know little about medical examiner office operations and accreditation provides knowledgeable guidance from the medical examiner community on normative practices. Mandatory accreditation helps ensure that the office is adequately resourced. Furthermore, it provides the public a reason to be trustful and confident in the office.

Personnel

Legislation can mandate qualifications and sufficiency of staffing. Appointment and qualification of the Chief Medical Examiner should be specified. All forensic pathologists should be licensed and board-certified within a period of time. Investigators may be required to be registered or certified within a period of time. Toxicologist qualification may be specified. The legislation may mandate an in-house counsel, a public information officer, a quality assurance officer, and so on. The accreditation requirement goes far toward the sufficiency of staffing.

Mandatory and Permissive Authority to Investigate Deaths

The statutory scheme should set out the jurisdiction of the office—which deaths the office must and may investigated. The NAME Forensic Autopsy Performance Standards should be considered here. Some discretion is inevitable and is desired. Who makes this decision may be spelled out—usually investigators and assistant medical examiners under the authority of the Chief Medical Examiner.

Mandatory and Permissive Authority to Perform Autopsies

Similarly, the statutory scheme should spell out when offices must and may perform an autopsy. Again, the NAME Forensic Autopsy Performance Standards should be considered here. Who makes this decision may be spelled out—usually the forensic pathologist conducting the medicolegal death investigation. The statute may allow the Public Health Chief or the Attorney General to order an autopsy. Legislators may want to consider procedures for handling religious and other objections to autopsies.

Other Considerations

The legislation could speak to a slew of other issues, such as subpoena power, research, death review teams, good faith immunity, appeals procedure, access to fingerprint, and motor vehicle registration databases, and so on.

AUTHOR

Victor W. Weedn, MD, JD, University of Maryland

Roles: A, B, C, D, E, 1. Original author.