10/14/2003 98-R-1090

FROM: Lawrence K. Furbish, Assistant Director

RE: Victim's Rights and Chief Medical Examiner's Autopsy Authority

You asked if (1) the chief medical examiner can order an autopsy without the consent of the deceased's next of kin and (2) the Chief Medical Examiner's Office has prepared any materials setting forth the rights of victim's relatives regarding autopsies and related issues.

SUMMARY

By statute, the chief medical examiner must investigate all human deaths falling in six listed categories, including homicides, suicides, accidental or suspicious deaths, unexpected and unexplained deaths, deaths related to employment, and deaths where the body will be disposed of in such a way as to make it unavailable. He may require an autopsy whenever he deems it necessary, and he does not have to obtain consent from a relative to perform the autopsy. Consent from a relative is required before a physician can order an autopsy in all other cases.

In 1972 the U.S. Court of Appeals interpreted the statutes in effect at that time (they have changed since) as authorizing the medical examiner to order an autopsy without a relative's consent when the cause of death is obscure. The courts have not interpreted the statute setting forth the duties and powers of the chief medical examiner.

The Chief Medical Examiner's Office does not have any type of pamphlet or other prepared material that explains the rights of victims' families regarding autopsies. It has a web page that has some information on the office and responds to frequently asked questions. Legislation passed this year establishes an Office of Victim Advocate. This act takes effect October 1, 1998, and this new office may ask various state agencies, including the Chief Medical Examiner's Office, to produce pamphlets or similar materials for victims and their families.

AUTOPSY AUTHORITY

The chief medical examiner is required by statute to investigate all human deaths in the following categories:

1. violent deaths, whether homicide, suicide, or by accident;

2. sudden or unexpected deaths not caused by readily recognizable disease;

3. deaths under suspicious circumstances;

4. deaths where the body will be cremated , buried at sea, or otherwise unavailable;

5. deaths from employment-related disease or accident; and

6. deaths from diseases that could cause a public health threat (CGS § 19a-406).

In connection with his investigation, the chief medical examiner "may require autopsies…when it appears warranted for proper investigation" and in his opinion, or the opinion of the deputy chief medical examiner, an associate medical examiner, or an authorized assistant medical examiner, an autopsy is necessary (§ 19a-406).

Any state's attorney or assistant state's attorney can require an autopsy in any case where there is a suspicion that death resulted from a criminal act. In such cases the official requiring the autopsy must make a reasonable effort to notify the person in charge of the body for burial purposes (father, mother, husband, wife, next of kin, etc.), but performance of the autopsy does not have to be delayed pending the notification. If no circumstances require an autopsy and the investigation results allow the chief medical examiner to reasonably determine that death was cause by natural causes or by obvious traumatic injury, he must certify the cause of death and file a report.

When someone dies and no autopsy has been ordered under CGS § 19a-406, a physician cannot perform an autopsy without first obtaining the consent of the person who is assuming custody of the body for burial purposes (CGS § 19a-286). This person must be at least age 18 and can be the father, mother, husband, wife, child, guardian, next of kin, friend, or other person charged by law with burial responsibility.

In 1972 the mother of a student at Canterbury School in New Milford challenged in federal court the right of a medical examiner to perform an autopsy on her son's body without her permission (Donnelly v. Guion 467 F.2d 290). The trial court held that where the cause of death is obscure, Connecticut law authorizes the medical examiner to order an autopsy without securing a relative's written consent and without a prior examination of the body by the coroner. The court of appeals rejected the plaintiff's request for summary judgment and upheld the trial court. The court observed that it was "unfortunate that the law cannot furnish a balm for the grief which [the mother] has endured." But it went on to say that the medical examiner "acted well within the scope of his authority under Connecticut law when he ordered the autopsy." The statutes which formed the basis of the court's opinion in this case involved county coroners and have since been repealed, but the current medical examiner statutes are structurally similar to the repealed statutes, so it is likely that the court's reasoning in this case would still be valid.

VICTIM RIGHTS INFORMATION

Although the Chief Medical Examiner's Office does not publish any victim's rights information, its web site http://www.state.ct.us/ocme includes information about the office, statistics, and frequently asked questions. The latter includes such things as what deaths are reportable, what type of deaths result in autopsies, who has access to autopsy reports, and how a copy of a report may be obtained.

PA 98-231, An Act Establishing the Office of Victim Advocate, will take effect October 1, 1998. The act authorizes the victim advocate, among other things, to evaluate the delivery of services to victims by state agencies, review citizen complaints about the actions of state agencies providing services to victims, recommend changes to state policies regarding victims, and conduct programs of public education. It is not clear if the Chief Medical Examiner's Office would be considered an agency that provides services to victims, but if it is, the new victim advocate could look into the issue of autopsies and providing information to the public about state policy in this area.

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