Repeated problems in State Medical Examiner’s Office result in unreliable certification as to cause of death

Issue Vol. 10 No. 1 January 2008 By Joseph M. Desmond

Introduction
The State Medical Examiner’s office has been repeatedly criticized for a variety of issues that have called into question the competence of the office. Despite the repeated errors of the office, death certificates signed by the medical examiner certifying an opinion as to cause of death are routinely admitted in evidence by statute in both civil and criminal cases with the presumptive weight of reliability and impartiality of the office of the Chief Medical Examiner for the Commonwealth. This article examines the statutory authority that provides a blanket rule of admissibility for death certificates in Massachusetts.

Recent History
The Office of the Chief Medical Examiner (“OCME”) has faced renewed scrutiny after the release of a scathing independent report in July of this year. The comprehensive report, commissioned by the Executive Office of Public Safety in the wake of several high-profile mishaps, including the loss of a Cape Cod man’s body following an autopsy, details numerous institutional shortcomings and characterized the OCME as “on the verge of collapse.” The report specifically criticized the OCME’s lack of “written polices and procedures or standard operating procedures on even the most basic of functions,” poor staff training “even on critical functions,” high caseload, and general non-compliance with the best practices of the field. Governor Patrick fired the Chief Medical Examiner shortly after the release of the report in an attempt to manage the crisis, but it appears the findings of the report has provided the defense bar with ample fodder for questioning the OCME’s cause of death determinations.

The 2007 report is merely the latest in nearly a decade of strong criticism of the OCME. The Office has been investigated by state and federal officials for a myriad of issues, including alleged misuse of grant money and mishandling forensic evidence such as body parts, photos and original autopsy reports. In addition, four separate studies and audits of the agency were commissioned and reported since 2000: the National Association of Medical Examiners (November, 2000); The Dallas Report (March 2001); The EOPS Review of Forensic Services (June, 2001); and The Needs Assessment of Forensic Services by the National Forensic Science Technology Center (April, 2002). A 2002 report on the Office by the National Forensic Science Technology Center in Florida repeatedly warned of “grave errors” and said “there exists a high risk to the Commonwealth that an injustice could occur” due to office practices.

Statutory Duty of the Office
The State Medical Examiner’s Office is statutorily obligated pursuant to Mass. Gen. Laws. c. 38 to establish a comprehensive system to deliver medicolegal services within the Commonwealth of Massachusetts. The Office is responsible for the investigation and certification as to the cause of deaths under their jurisdiction. When notified of a death pursuant to §3, the Chief Medical Examiner is required to carefully inquire into the cause and circumstances of the death. If the Chief Medical Examiner determines that the death was due to violence or other unnatural means, or to natural causes that require further investigation, he is required to take jurisdiction. The manner of death places a death into one of the five categories: natural, homicide, suicide, accident, or undetermined, while the cause of death is the disease process or injury responsible for the death.

In carrying out its required investigatory duties, the Chief Medical Examiner “is entitled to review and receive copies of medical records, hospital records or information which he deems relevant to establishing the cause and manner of death.” In this regard, hospitals and medical facilities are obliged to cooperate with the OCME in the investigation of medicolegal cases. Notwithstanding the obvious significance of the responsibilities of the state medical examiner’s office, the OCME has been essentially level funded since its inception in 1983. In the wake of the publicity surrounding the multitude of issues that have plagued the office, the budget has been significantly increased since 2005, yet it remains below the national average.

Office Policies and Practices Concerning Autopsies
Notwithstanding the mandate of Chapter 38, the OCME did not adopt formal policies and procedures concerning investigations until 2002. Prior to the adoption of the current policy manual, autopsies were essentially determined on an ad hoc basis without reference to standardized procedures. A recent policy iteration of the leaves the decision as to whether or not to conduct an autopsy to the discretion of the pathologist on duty. The policy provides a “general guideline” as to cases that may be disposed of by way of external inspection as opposed to an autopsy. The guidelines suggest that an autopsy should be conducted unless the cause of death is reasonably clear from an external examination, such as cases involving suicide where there is a suicide note or evidence of suicidal intent documented in the medical history. Other cases that may be disposed of without autopsy include cases of natural deaths and individuals over the age of 50 where there is evidence of significant medical history available; cases of witnessed drownings; and death felt to be related to a blunt trauma sustained as the result of a motor vehicle accident. When autopsies are conducted, the pathologist is directed to review all available medical records, police reports, ante-mortem and post-mortem x-rays and the medical examiner’s investigative report. In light of the staffing shortages, such a thorough review is likely the exception rather than the rule of the OCME.

Statistics obtained from the Registry of Vital Records and Statistics show that the OCME performs an autopsy in less than 30% of its cases. More often, the OCME relies on a simple viewing to make a determination as to the cause of death. The Office has been criticized for refusing to conduct autopsies in auto accident cases and other cases.
The advantage of the autopsy are numerous. Autopsies help determine the efficacy of drug therapy and surgical techniques. They provide comfort to families in knowing the cause of death. They discover and define new diseases and environmental hazards. Information obtained from autopsies is essential in establishing valid mortality statistics. These vital statistics are compiled from hospital death certificates.

In addition to preforming relatively few autopsies, it also remains unclear the extent of investigation conducted on non-autopsy cases before the cause of death is certified by the Office. In some cases, the OCME certifies the cause of death without an autopsy and without reviewing medical records or consulting with the decedent’s medical providers. Ironically, in many instances, the pathologist signing the death certificate would not pass a Daubert/Canavan challenge if he or she was called to testify at trial as an expert on the cause of death. Nonetheless, the determination as to cause of death by the OCME is admissible by statute.

The absence of autopsy findings sufficient to explain death may pose a dilemma for the physician completing the death certificate: this dilemma is not uncommon when causes of death in the elderly are at issue. Unfortunately, due to the low national autopsy rate, especially among the elderly nursing home population, erroneous reporting of the cause-of-death is undoubtedly frequent. The autopsy can play a major role in the evaluation of suspected abuse or neglect of the elderly. The nature and extent of specific injury can be documented, and an evaluation of hydration status and metabolic status may be performed. The possibility of causes of death other than abuse/neglect may be evaluated, sometimes exonerating those falsely accused of abuse or neglect.

Death Certificates
Death certificate information is a major source of statistical data to identify public health problems, to monitor progress in public health, to allocate research funds, and to conduct scientific research. Notwithstanding the lack of uniformity in reaching a determination as to a cause of death and the lack of information reviewed in some cases, death certificates signed by the OCME are admissible in evidence by statute as prima facie evidence of a decedent’s cause of death. M.G.L. c. 46, §19 provides, in relevant part, that:

The record of the town clerk relative to a … death shall be prima facie evidence of the facts recorded, but nothing contained in the record of a death which has reference to the question of liability for causing the death shall be admissible in evidence. A certificate of such a record, signed by the town clerk or assistant clerk, or a certificate of the copy of the record relative to a … death … shall be admissible as evidence of such record.

M.G.L. c. 46, §19 provides that in Massachusetts, as a matter of law, opinions expressed in death certificates may be admitted without any inquiry as to the reliability of the opinions. Indeed, the Supreme Judicial Court has acknowledged that with respect to entries by medical examiners on death certificates, “[t]he opinion fact becomes prima facie evidence by virtue of the statute and not because of probative force necessarily inherent in it or the underlying facts.” In light of the statute, opinions as to cause of death issued by the State Medical Examiner’s office will continue to be admitted in Massachusetts State Courts as prima facie evidence of death in both homicide cases and wrongful death cases.

Applying the Federal Rules of Evidence, federal district courts in Massachusetts have declined to follow the per se admissibility of death certificates. Rather, the federal courts have maintained the requirement that the information recorded in the death certificate be reliable as a pre-requisite to its admission in evidence.

Conclusion
To the extent that the opinions are unfavorable, counsel must be prepared to attack the reliability of the conclusions with a thorough investigation into whether the OCME complied with its statutory obligations as well as internal policies in reaching an opinions as to the cause of death. At a minimum, the office’s policy manual and complete file must be obtained. The recent findings of the independent report can also be used to support the argument that the Office deviated from accepted medical practices. Experience teaches that a live keeper of records deposition may be necessary to obtain a complete file. Furthermore, the pathologist certifying the cause of death should be deposed. Former employees of the Office (such as former staff pathologists) are likely to provide candid information about the limited resources of the Office that in many cases precluded a thorough investigation and reliable conclusion as to the cause of death.