Bill Text: MS HB715 | 2017 | Regular Session | Introduced
Bill Title: Autopsy; consent must be obtained from deceased's relative before being performed.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2017-01-31 - Died In Committee [HB715 Detail]
Download: Mississippi-2017-HB715-Introduced.html
MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Judiciary B
By: Representative Dixon
House Bill 715
AN ACT TO PROVIDE THAT BEFORE AN AUTOPSY MAY BE PERFORMED UPON THE BODY OF A DECEASED PERSON, WRITTEN CONSENT TO THE AUTOPSY MUST BE OBTAINED FROM A PERSON WHO IS RELATED TO THE DECEASED; TO AMEND SECTIONS 41-37-9, 41-37-23, 41-61-65, 41-61-67, 47-5-151 AND 99-41-15, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known as the "Broderick Dixon Autopsy Consent Act."
SECTION 2. (1) Before an autopsy may be performed upon the body of a deceased person, written consent to the autopsy must be obtained from any of the following persons, if they may be found by reasonable search and inquiry, in the priority of the order listed: (a) the surviving spouse of the deceased; (b) either parent of or any person in loco parentis to the deceased; (c) any descendant of the deceased over the age of eighteen (18) years; (d) a guardian of the deceased; or (e) any person related to the deceased according to the civil law rule. If none of the persons listed in this section are found by reasonable search and inquiry, the autopsy may be performed without prior consent, and the person required to obtain consent shall make and keep a record of the nature and extent of the search and inquiry that was performed to locate the persons in the list.
(2) This section shall not apply to any autopsy authorized to be performed under Section 41-37-25 where consent to the autopsy has already been given by a person authorized by that section to give consent.
SECTION 3. Section 41-37-9, Mississippi Code of 1972, is amended as follows:
41-37-9. A circuit judge,
chancellor or county judge of the county or district where a person died or
where the body of * * * the
deceased person may be or where the mortal stroke or other cause of death
occurred, may, in his discretion, either in term time or in vacation, order an
autopsy to be performed upon the body of * * * the deceased person (1) upon the petition
of a county prosecuting attorney of the county where the person died, or where
the body of * * * the
deceased person may be at the time or where the mortal stroke or other cause of
death occurred, or (2) upon petition of the district attorney of the district
where the person died, or where the body of * * * the deceased person may be at the
time or where the mortal stroke or other cause of death occurred. * * *
If the
petition is filed by the county prosecuting attorney or district attorney, it
shall contain allegations that the petitioner believes, has reason to believe,
or suspects that * * * the
deceased person came to his death by some criminal means or agency, or that the
cause of justice would be promoted by having an autopsy performed upon the body
of * * * the
deceased person. * * * The
petition shall be sworn to and shall be filed in the court of the judge or
chancellor who makes the order, and shall be docketed by the clerk as are other
cases or suits. If the body of * * * the deceased person has already been
interred, the petition shall so state, and if an autopsy is ordered, the order
shall order the disinterment of * * * the body for * * *
the autopsy and shall
order any lawful officer of the county where * * * the body may be buried to employ
suitable help to disinter * * * the body and to keep it in a
suitable place until * * * the
autopsy * * * has
been performed. If there has been no interment of the body of * * *
the deceased person, a
copy of the order ordering an autopsy upon * * * the deceased shall be served by the
sheriff of the county, or any other person authorized to serve process, upon
any person who may be found in charge of any funeral home where * * *
the body may be, and * * *
the funeral home shall
hold * * * the
body for autopsy. If the body of * * * the deceased person * * *
is not found in any
funeral home the sheriff of the county where it * * * is found shall take * * *
the body and keep it in
a suitable place until * * * saidthe autopsy * * * has been performed. If an
autopsy is ordered as provided in this section, the petitioner shall
immediately secure the services of a qualified person to perform * * *
the autopsy.
Before an autopsy authorized under this section may be performed, the judge or chancellor must obtain the consent required by Section 2 of this act.
SECTION 4. Section 41-37-23, Mississippi Code of 1972, is amended as follows:
41-37-23. The executive
officer of the Mississippi State Board of Health or a county health officer may
petition in like manner as is provided in Section 41-37-9 a circuit judge,
chancellor, or county judge in any county in which a person dies or where the
body of * * * the
deceased person may be, and * * * the circuit judge, chancellor, or
county judge may order an autopsy to be performed upon the body of * * *
the deceased person in
the interest of public health and welfare in cases where the cause of death is
not known and cannot be determined with reasonable certainty without an autopsy
and when it would appear to * * * the judge or chancellor by * * *
the petition and
evidence in support thereof that death may have been due to communicable
disease or contagious disease or to poison, foreign substance, radiation or for
any other reason exact knowledge as to which would be of benefit to the public
health and welfare. In * * * suchthose cases, the same fees as specified in
criminal investigations to the autopsy physician and chemist shall be allowed
by the board of supervisors out of the general fund of the county in which * * *
the petition is filed,
except that no fee shall be allowed and paid to any physician or chemist who is
a regular salaried employee of the state or county. A copy of the report of
the autopsy physician and chemist in * * * those cases shall be filed with the
clerk of the court in which * * * the order was entered, with the
county health officer of * * * suchthat county and with the executive officer of the
State Board of Health.
Before an autopsy authorized under this section may be performed, the judge or chancellor must obtain the consent required by Section 2 of this act.
SECTION 5. Section 41-61-65, Mississippi Code of 1972, is amended as follows:
41-61-65. (1) If, in the opinion of the medical examiner investigating the case, it is advisable and in the public interest that an autopsy or other study be made for the purpose of determining the primary and/or contributing cause of death, an autopsy or other study shall be made by the State Medical Examiner, or the State Medical Examiner may choose a competent pathologist who is designated by the State Medical Examiner or the Department of Public Safety as a pathologist qualified to perform postmortem examinations and autopsies to perform the autopsy or study. To be eligible to be designated under this section, a pathologist must be an M.D. or D.O. who is certified in forensic pathology by the American Board of Pathology unless a certified forensic pathologist is not available to perform a postmortem examination or autopsy within a reasonable time. The State Medical Examiner or designated pathologist may retain any tissues as needed for further postmortem studies or documentation. When the medical examiner has received notification under Section 41-39-15(6) that the deceased is medically suitable to be an organ and/or tissue donor, the State Medical Examiner or designated pathologist may retain any biopsy or medically approved sample of the organ and/or tissue in accordance with the provisions of Section 41-39-15(6). A complete autopsy report of findings and interpretations, prepared on forms designated for this purpose, shall be submitted promptly to the State Medical Examiner. Copies of the report shall be furnished to the authorizing medical examiner, district attorney and court clerk. A copy of the report shall be furnished to one (1) adult member of the immediate family of the deceased or the legal representative or legal guardian of members of the immediate family of the deceased upon request. In determining the need for an autopsy, the medical examiner may consider the request from the district attorney or county prosecuting attorney, law enforcement or other public officials or private persons. However, if the death occurred in the manner specified in subsection (2)(j) of Section 41-61-59, an autopsy shall be performed by the State Medical Examiner or a designated pathologist who is qualified as required by this subsection, and the report of findings shall be forwarded promptly to the State Medical Examiner, investigating medical examiner, the State Department of Health, the infant's attending physician and the local sudden infant death syndrome coordinator.
(2) Any medical examiner or duly licensed physician performing authorized investigations and/or autopsies as provided in Sections 41-61-51 through 41-61-79 who, in good faith, complies with the provisions of Sections 41-61-51 through 41-61-79 in the determination of the cause and/or manner of death for the purpose of certification of that death, shall not be liable for damages on account thereof, and shall be immune from any civil liability that might otherwise be incurred or imposed.
(3) Family members or others who disagree with the medical examiner's determination shall be able to petition and present written argument to the State Medical Examiner for further review. If the petitioner still disagrees, he may petition the circuit court, which may, in its discretion, hold a formal hearing. In all those proceedings, the State Medical Examiner and the county medical examiner or county medical examiner investigator who certified the information shall be made defendants. All costs of the petition and hearing shall be borne by the petitioner.
(4) Before an autopsy authorized under this section may be performed, the State Medical Examiner or the medical examiner investigating the case must obtain the consent required by Section 2 of this act.
SECTION 6. Section 41-61-67, Mississippi Code of 1972, is amended as follows:
41-61-67. (1) In any case of death where the body is or has been buried without investigation by a medical examiner as to the cause and manner of death, or where sufficient cause develops for further investigation after a body has been buried as determined by a medical examiner, the State Medical Examiner shall authorize an investigation and send a report of the investigation with recommendations to the appropriate district attorney. The district attorney may forward the report to the circuit court having jurisdiction of the matter and petition the court for disinterment. The circuit judge may order that the body be exhumed and that an autopsy be performed by the State Medical Examiner. A report of the autopsy and other pathological studies shall be delivered to the judge. However, in cases of suspected homicide, the State Medical Examiner shall be able to authorize disinterment for the purposes of autopsy. The cost of the exhumation, autopsy, transportation and disposition of the body shall be paid by the county for which the service is provided.
(2) Any person may petition the circuit court for an order of exhumation. Upon a showing of sufficient cause, the court may order the body exhumed. The cost incurred shall be assigned to the petitioner.
(3) Before an autopsy authorized under this section may be performed, the judge or the State Medical Examiner must obtain the consent required by Section 2 of this act.
SECTION 7. Section 47-5-151, Mississippi Code of 1972, is amended as follows:
47-5-151. The
superintendent (warden) or other person in charge of prisoners, upon the death
of any prisoner under his care and control, shall at once notify the county
medical examiner or county medical examiner investigator (hereinafter
"medical examiner") of the county in which * * * the prisoner died, of the death of
the prisoner, and it shall be the duty of * * * the medical examiner, when so
notified of the death of * * * suchthat person, to obtain a court order and notify the
State Medical Examiner of the death of * * * the prisoner. It shall be mandatory
that the State Medical Examiner cause an autopsy to be performed upon the body
of the deceased prisoner. Furthermore, the State Medical Examiner shall
investigate any case where a person is found dead on the premises of the
correctional system, in accordance with Sections 41-61-51 through 41-61-79.
The State Medical Examiner shall make a written report of his investigation,
and shall furnish a copy of the same, including the autopsy report, to the
superintendent (warden) and a copy of the same to the district attorney of the
county in which * * * the
prisoner died. The copy so furnished to the district attorney shall be turned
over by the district attorney to the grand jury, and it shall be the duty of
the grand jury, if there * * * beis any suspicion of wrongdoing shown by the inquest
papers, to thoroughly investigate the cause of * * * the death.
It shall be the duty of the
medical examiner of the county in which * * * the prisoner died to arrange for the
remains to be transported to the State Medical Examiner for * * *
the autopsy, and
accompanying the remains shall be the court order for autopsy and any documents
or records pertaining to the deceased prisoner, institutional health records or
other information relating to the circumstances surrounding the prisoner's
death. The State Medical Examiner shall arrange for the remains to be
transported to the county in which * * * the prisoner died following
completion of the autopsy. If the remains are not claimed for burial within
forty-eight (48) hours after autopsy, then * * * the remains may be delivered to the
University of Mississippi Medical Center for use in medical research or
anatomical study.
The provisions * * *
set forth in the first
paragraph of this section shall likewise apply to any case in which any
person is found dead on the premises of the Mississippi State Penitentiary,
except that the autopsy to be performed on the body of such a person shall not
be mandatory upon a person who is not a prisoner unless the medical examiner
determines that the death resulted from circumstances raising questions as to the
cause of death, in which case the medical examiner may cause an autopsy to be
performed upon the body of * * * the deceased person in the same
manner as authorized to be performed upon the body of a deceased prisoner.
* * * The provisions * * *
of this section shall
apply with respect to any deceased prisoner who at the time of death is being
detained by duly constituted state authority such as the Oakley Youth
Development Center, Mississippi State Hospital at Whitfield, East Mississippi
State Hospital, or any other state institution.
The provisions of this section shall not apply to a prisoner who was lawfully executed as provided in Sections 99-19-49 through 99-19-55.
Before an autopsy authorized under this section may be performed, the State Medical Examiner or the medical examiner investigating the case must obtain the consent required by Section 2 of this act.
Any officer or employee of
the prison system or any other officer, employee or person having charge of any
prisoner who * * *
fails to immediately notify the medical examiner of the death of * * *
the prisoner, shall be
guilty of a misdemeanor and, upon conviction thereof, shall be punished by a
fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred
Dollars ($500.00) and by confinement in the county jail for not more than one
(1) year.
SECTION 8. Section 99-41-15, Mississippi Code of 1972, is amended as follows:
99-41-15. (1) Any person
filing a claim under the provisions of this chapter shall be deemed to have
waived any physician-patient privilege as to the communications or records
relevant to an issue of the physical, mental or emotional conditions of the
claimant. However, any record or report obtained by the director, the
confidentiality of which is otherwise protected by any other law or regulation,
shall remain confidential, subject to * * * that law or regulation.
(2) If the mental, physical or emotional condition of a claimant is material to a claim, the director, upon good cause shown, may order the claimant to submit to a mental or physical examination and may order an autopsy of a deceased victim. The order shall specify the time, place, manner, conditions and scope of the examination or autopsy and the person by whom it is to be made. The order shall also require the person to file with the director a detailed written report of the examination or autopsy. The report shall set out the findings of the person making the report, including the results of all tests made, the diagnosis, prognosis and other conclusions and reports of earlier examinations of the same conditions. Before an autopsy authorized under this section may be performed, the director must obtain the consent required by Section 2 of this act.
(3) The director shall furnish a copy of the report examined. If the victim is deceased the director shall furnish a copy of the report to the claimant on request.
(4) The director may require the claimant to supply any additional medical or psychological reports available relating to the injury or death for which compensation is claimed.
SECTION 9. This act shall take effect and be in force from and after July 1, 2017.
