MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Public Health and Welfare; Judiciary B

By: Representative Peranich

AN ACT TO PROVIDE THAT BEFORE AN AUTOPSY MAY BE PERFORMED UPON THE BODY OF A DECEASED PERSON, NOTICE SHALL BE GIVEN TO CERTAIN PERSONS WHO ARE 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. (1) Before an autopsy may be performed upon the body of a deceased person, notice shall be given to any of the following persons, if they may be found by reasonable search and inquiry, in the priority of the order listed: the surviving spouse of the deceased, either parent of or any person in loco parentis to the deceased, any descendant of the deceased over the age of eighteen (18) years, a guardian of the deceased, or any person related to the deceased according to the civil law rule. If none of the persons listed in this section may be found by reasonable search and inquiry, the person required to give this notice 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 41-37-25 where consent to the autopsy has already been given by a person authorized by that section to give consent.

SECTION 2. 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 such 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 such deceased person (1) upon the petition of a county prosecuting attorney of the county where the person died, or where the body of such 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 such deceased person may be at the time or where the mortal stroke or other cause of death occurred. In the event that 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 such 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 such 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 such deceased person has already been interred, the petition shall so state, and if an autopsy is ordered, the order shall order the disinterment of such body for such 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 shall have been performed. If there has been no interment of the body of such 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 such funeral home shall hold the body for autopsy. If the body of such deceased person be not found in any funeral home the sheriff of the county where it may be found shall take the body and keep it in a suitable place until the autopsy shall have 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 such autopsy.

Before an autopsy authorized under this section may be performed, the judge or chancellor shall give the notice required by Section 1 of this act.

SECTION 3. 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 such deceased person may be, and such circuit judge, chancellor, or county judge may order an autopsy to be performed upon the body of such 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 such judge or chancellor by such 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 such 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 such 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 such cases shall be filed with the clerk of the court in which such order was entered, with the county health officer of such 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 shall give the notice required by Section 1 of this act.

SECTION 4. 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 by a competent pathologist designated by the State Medical Examiner. The State Medical Examiner or designated pathologist may retain any tissues as needed for further postmortem studies or documentation. 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 his designated pathologist, and the report of findings shall be forwarded promptly to the State Medical Examiner, investigating medical examiner, 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. All cost of the petitioning 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 shall give the notice required by Section 1 of this act.

SECTION 5. 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 shall give the notice required by Section 1 of this act.

SECTION 6. 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 such medical examiner, when so notified of the death of such person, to obtain a court order and notify the State Medical Examiner of the death of such 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 6 through 20 of this act. 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 be any suspicion of wrongdoing shown by the inquest papers, to thoroughly investigate the cause of such 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 herein set forth in the first paragraph 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 such deceased person in the same manner as authorized to be performed upon the body of a deceased prisoner.

Provided further, that the provisions herein 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 Columbia Training School, Oakley Training School, 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 shall give the notice required by Section 1 of this act.

Any officer or employee of the prison system or any other officer, employee or person having charge of any prisoner who shall fail to immediately notify the medical examiner of the death of such 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 7. 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 such 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 shall give the notice required by Section 1 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 8. This act shall take effect and be in force from and after July 1, 1997.