Death Certificates And Autopsy Protocols Admissibility As Evidence

The death certificate is a public record. In almost all states a certified copy is admissible in court as evidence that death in fact occurred. In some but not all states, the cause of death opinion on the certificate is similarly admitted. Autopsy protocols and diagnoses may or may not be admitted into evidence, depending on the state concerned. In most states, the protocols and diagnoses are not admissible by themselves as evidence. Rather, an expert who may or may not be the autopsy pathologist who signed the report, must give opinions under oath. This allows for cross examination, which is a right of the defendant in the USA in criminal cases. Hospital records, including autopsy records, may be treated as business records, that is, the physician may rely on this material as foundation for opinions and the hearsay rule does not apply. In medical malpractice suits, the testimony of the autopsy pathologist may be taken in deposition but if there is a trial, the courtroom testimony will be provided by hired experts for the plaintiff and the defense. If no deposition was given, the hospital pathologist may never be aware that the autopsy played a role in a lawsuit. Autopsy pathologists, like other expert witnesses, are allowed to refer to their file notes and reports when testifying (27,28).

CONFIDENTIALITY OF AUTOPSY RECORDS In most jurisdictions, information gained at autopsy is not privileged because a dead body is not considered a patient. Under common law, no rights of confidentiality relate to a dead body but codified law (statute) may change this rule. Restrictions to the release of autopsy records may exist. For example, in the State of New York, medical examiner autopsy reports are available only to the district attorney, the next of kin, and anyone with a court order. In any event, a physician who discloses autopsy findings must be careful not to reveal facts that he or she learned during the patient's life while a professional relationship existed between the patient and the physician (27,29).

Diagnoses or opinions concerning autopsy findings frequently are sought by private insurance carriers. Generally, such information should be released only after a signed authorization has been obtained from the person who had custody of the body and who gave permission for the autopsy. However, if the autopsy was performed pursuant to statute in a state with a "sunshine" public records law, the autopsy report is considered a public record unless it concerns an active criminal investigation or related exceptions (30).

The foremost reason for the surviving spouses or the next of kin to authorize autopsies is their desire to have the findings explained to them, either in an interview or in writing. Recommendations for such interviews have been described in detail in Chapter 16. As stated, care must be taken that the findings are disclosed primarily to the individual who had custody of the body and therefore, interviews should be conducted in person rather than by phone. With consent from the custodian of the body, an interview may be held with a friend of the family or their clergyman. Letters with autopsy findings must be addressed to the surviving spouse or the next of kin who had custody of the body.

Medical examiners or coroners sometimes receive requests from the spouse or next of kin to do an autopsy because of some suspicion of malpractice and the fear that the hospital pathologist might not render an independent opinion. An example would be the request to do an autopsy to determine if a decedent received an overdose of a particular drug 2 wk prior to death. Although the autopsy may not answer the posed question, it still makes the requestors feel that they obtained information concerning the medical care.

Statutory autopsies also may be explained to relatives of the deceased. If such autopsies involve criminal cases, the prosecuting attorney or lead detective should be consulted first. Interviews concerning autopsies in criminal cases should be limited to the cause of death opinion as it appears on the death certificate. In suicide or accident cases it seems humane not to elaborate on suffering that the deceased may have endured. In homicide cases, that opinion is best reserved for trial. Testimony that pain and suffering occurred may affect the penalty.

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