On September 28, 2016, Governor Jerry Brown signed into law Senate Bill (SB) 1189, which amends several California Government Code provisions and adds a new section to the Government Code relating to autopsies as set forth below. This legislation is effective January 1, 2017.
Government Code Section 27491.4
SB 1189 amends Government Code section 27491.4 to require that an autopsy be performed by a licensed physician and surgeon and that the findings “pertinent to establishing the cause of death” as well as the written opinions and conclusions of the examining licensed physician and surgeon be included in the coroner’s record of the death. SB 1189 further amends Section 27491.4 to provide that only individuals who are directly involved in the investigation of the death of the decedent may be present during the performance of the autopsy.
Government Code Section 27491.41
In cases where an infant dies suddenly and unexpectedly, SB 1189 amends Government Code section 27491.41 to permit an autopsy to be performed at the discretion of the coroner if the attending licensed physician and surgeon desires to certify that the cause of death is Sudden Infant Death Syndrome (“SIDS”). SB 1189 further amends Section 27491.41 to provide that, in addition to the coroner, the licensed physician and surgeon “shall not be liable for damages in a civil action for any act or omission done in compliance with [Section 27491.41].”
Government Code Section 27491.43
When a decedent has executed a certificate of religious belief indicating that the autopsy, dissection, or removal of corneal tissue, pituitary glands, or any other organ, tissue, or fluid would be contrary to his or her religious beliefs, SB 1189 amends Government Code section 27491.43 to prohibit a coroner from performing, or ordering the performance of, that procedure on the body of the decedent. This amendment to Section 27491.43 further prohibits a coroner from ordering an autopsy to be performed, except as provided, for 48 hours, if the coroner is informed by a relative or friend of the decedent that the decedent had executed a certificate of religious belief.
Government Code Section 27491.46
SB 1189 amends Government Code section 27491.46 to remove prior authority for the coroner to remove a pituitary gland from a body during an autopsy for transmission to a public agency for specified uses.
Government Code Section 27491.47
SB 1189 amends Government Code section 27491.47 to remove prior authority for the coroner to remove corneal tissue from a body in the course of an autopsy. Pursuant to SB 1189, the coroner may authorize such removal in specified circumstances.
Government Code Section 27520
SB 1189 amends Government Code section 27520 to either require or permit the coroner to “cause an autopsy to be performed” in specified circumstances. The amendment removes the prior authority for the coroner to perform such an autopsy.
New Government Code Section 27522
SB 1189 also adds Section 27522 to the Government Code. Section 27522 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.” Section 27522 defines a “postmortem examination” as “the external examination of the body where no manner or cause of death is determined.”
Section 27522 requires that:
- A forensic autopsy be conducted only by a licensed physician and surgeon. Trained personnel who are necessary to the performance of an autopsy may, at the direction and supervision of a coroner, medical examiner, or a licensed physician and surgeon, take body measurements, or retrieve blood, urine, or vitreous samples from the body of a decedent.
- A licensed physician and surgeon determine the results of the forensic autopsy.
- The manner of death, for purposes of Section 27522, be determined by the coroner or medical examiner of a county. If a forensic autopsy is performed, it requires the coroner or medical examiner to consult with the licensed physician and surgeon in determining the manner of death.
- All persons in the autopsy suite be informed of the risks presented by bloodborne pathogens and that they should wear personal protective equipment in accordance with specified requirements.
- Only individuals directly involved in the investigation of the death of the decedent are allowed in the autopsy suite.
Where an individual dies due to law enforcement activity, Section 27522 provides, “If an individual dies due to the involvement of law enforcement activity, law enforcement personnel directly involved in the death of that individual shall not be involved with any portion of the postmortem examination, nor allowed inside the autopsy suite during the performance of the autopsy.” (Emphasis added.) Section 27522 further requires that 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” be made available to the physician and surgeon who conducts the autopsy prior to the completion of the investigation of the death.
HOW THIS AFFECTS YOUR AGENCY
SB 1189 requires that an autopsy be conducted by a licensed physician and surgeon, and specifies the findings, opinions, and conclusions of the examining licensed physician and surgeon that must be included in the coroner’s record of death. Specifically, the coroner’s record of death must include “detailed medical findings resulting from an inspection of the body or autopsy by an examining licensed physician and surgeon … all positive and negative findings pertinent to establishing the cause of death … along with the written opinions and conclusions of the examining licensed physician and surgeon.”
Further, SB 1189 prohibits law enforcement personnel that were directly involved in the death of an individual who died due to the involvement of law enforcement activity from being involved in the postmortem examination, defined as “the external examination of the body where no manner or cause of death is determined,” or from being present in the autopsy suite while the autopsy is performed. This means that, if a person dies due to law enforcement activity, any law enforcement personnel that were involved in that person’s death cannot be involved in the postmortem examination or present in the autopsy suite during the autopsy.
Finally, SB 1189 requires that law enforcement personnel make available to the physician and surgeon who conducts an autopsy of a person whose death was “incident to law enforcement activity”, police reports, crime scene or other information, videos, or laboratory tests that are in their possession and related to the death prior to the completion of the investigation of the death.
As with all legal issues, it is imperative that each agency seek out the advice and guidance of their designated legal advisor before implementing new law. However, as always, if you wish to discuss this matter in greater detail, feel free to contact James R. Touchstone at (714) 446-1400 or via email at jrt@jones-mayer.com
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