2007 Regular Session
By: Representative Lane
AN ACT TO CREATE THE POSITION OF STATE PATHOLOGIST IN THE DEPARTMENT OF PUBLIC SAFETY; TO PROVIDE THAT THE STATE PATHOLOGIST SHALL BE APPOINTED BY THE COMMISSIONER OF PUBLIC SAFETY AND SHALL BE UNDER THE SUPERVISION OF THE DIRECTOR OF THE MISSISSIPPI CRIME LABORATORY; TO PROVIDE THAT THE LEGISLATURE SHALL APPROPRIATE A SUFFICIENT AMOUNT EACH YEAR TO FULLY FUND THE OFFICE OF THE STATE PATHOLOGIST; TO AMEND SECTIONS 45-1-27, 41-39-15, 41-61-59, 41-61-65, 41-61-75 AND 41-61-77, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) There is created in the Department of Public Safety the full time position of State Pathologist, who shall be appointed by the Commissioner of Public Safety and shall be under the supervision of the Director of the Mississippi Crime Laboratory. The State Pathologist shall be a physician licensed by the State Board of Medical Licensure who is a certified pathologist, and shall perform such duties as prescribed by law or assigned by the Director of the Crime Laboratory. The State Pathologist may employ additional qualified pathologists as are necessary to carry out the duties of his office.
(2) The Legislature shall appropriate a sufficient amount each year to fully fund the office of the State Pathologist, so that the State of Mississippi will have one or more full time pathologists who are able to complete all necessary autopsies within a reasonable time.
SECTION 2. Section 45-1-27, Mississippi Code of 1972, is amended as follows:
45-1-27. The director shall have responsibilities and duties including but not limited to the following:
(a) To plan and give general direction to activities or programs for which he is responsible, through the issuance of directives and orders.
(b) To review proposed changes in policies affecting the operation of the division under his direction.
(c) To maintain liaison with other agencies, divisions or departments of state and federal government.
(d) To approve and maintain uniform procedures and standards of operation for the laboratory.
(e) To supervise and approve procedures and processing of physical evidence.
(f) To present testimony in court in analysis of physical evidence.
(g) To supervise the State Medical Examiner and the State Pathologist.
(h) To attend scientific conferences and hold classes for law enforcement officers.
(i) To present budget requests to the Legislative Budget Office and to legislative committees.
SECTION 3. Section 41-39-15, Mississippi Code of 1972, is amended as follows:
41-39-15. (1) For the purposes of this section:
(a) "Potential organ donor" means a patient with a severe neurological insult who exhibits loss of cranial nerve response or who has a Glasgow Coma Scale score of five (5) or less.
(b) "Potential tissue donor" means any patient who dies due to cardiac arrest.
(c) "Organ procurement organization" means the federally designated agency charged with coordinating the procurement of human organs in the State of Mississippi for the purpose of transplantation and research.
(d) "Tissue bank" or "tissue procurement organization" means a not-for-profit agency certified by the Mississippi State Department of Health to procure tissues, other than solid organs, in the State of Mississippi.
(2) Before November 1, 1998, each licensed acute care hospital in the state shall develop, with the concurrence of the hospital medical staff and the organ procurement organization, a protocol for identifying all potential organ and tissue donors. The protocol shall include a procedure for family consultation. This protocol shall not be applicable in cases where a declaration by the organ donor (a) by will, (b) under a Durable Power of Attorney for Health Care declaration under Section 41-41-209, (c) under a Withdrawal of Life-Saving Mechanism (Living Will) declaration under former Section 41-41-107 (now repealed), or (d) under the Anatomical Gift Law under Section 41-39-39, has been provided to the attending physician.
(3) The protocol shall require each hospital to contact the organ procurement organization by telephone when a patient in the hospital becomes either a potential organ donor or potential tissue donor as defined in this section. The organ procurement organization shall determine the suitability of the patient for organ or tissue donation after a review of the patient's medical history and present condition. The organ procurement organization representative shall notify the attending physician or designee of its assessment. The hospital shall note in the patient's chart the organ procurement organization's assessment of suitability for donation. The organ procurement organization representative shall provide information about donation options to the family or persons specified in Section 41-39-35 when consent for donation is requested.
(4) If the patient becomes brain dead and is still suitable as a potential donor, the organ procurement organization representative shall approach the deceased patient's legal next of kin or persons specified in Section 41-39-35 for consent to donate the patient's organs. The organ procurement organization representative shall initiate the consent process with reasonable discretion and sensitivity to the family's circumstances, values and beliefs.
To discourage multiple requests for donation consent, the organ procurement organization representative shall make a request for tissue donation during the organ donation consent process. When the possibility of tissue donation alone exists, a tissue bank representative or their designee may request the donation.
(5) The option of organ and/or tissue donation shall be made to the deceased patient's family upon the occurrence of brain death and while mechanical ventilation of the patient is in progress.
The protocol shall require that the decision to donate be noted in the patient's medical record. The organ procurement organization shall provide a form to the hospital for the documentation. The form shall be signed by the patient's family pursuant to Sections 41-39-31 through 41-39-51. The form shall be placed in each deceased patient's chart documenting the family's decision regarding donation of organs or tissues from the patient.
(6) (a) If the deceased patient is medically suitable to be an organ and/or tissue donor, as determined by the protocol in this section, and the donor and/or family has authorized the donation and transplantation, the donor's organs and/or tissues shall be removed for the purpose of donation and transplantation by the organ procurement organization, in accordance with paragraph (b) of this subsection.
(b) If the deceased patient is the subject of a medical-legal death investigation, the organ procurement organization shall immediately notify the appropriate medical examiner that the deceased patient is medically suitable to be an organ and/or tissue donor. If the medical examiner determines that examination, analysis or autopsy of the organs and/or tissue is necessary for the medical examiner's investigation, the medical examiner may be present while the organs and/or tissues are removed for the purpose of transplantation. The physician, surgeon or technician removing the organs and/or tissues shall file with the medical examiner a report detailing the donation, which shall become part of the medical examiner's report. When requested by the medical examiner, the report shall include a biopsy or medically approved sample, as specified by the medical examiner, from the donated organs and/or tissues.
(c) In a medical-legal death investigation, decisions about organ and/or tissue donation and transplantation shall be made in accordance with a protocol established and agreed upon by majority vote no later than July 1, 2005, by the organ procurement organization, the State Pathologist * * *, a representative from the University of Mississippi Medical Center, a representative from the Mississippi Coroners Association, an organ recipient who shall be appointed by the Governor, the Director of the Mississippi Bureau of Investigation of the Mississippi Department of Public Safety, and a representative of the Mississippi Prosecutor's Association appointed by the Attorney General. The protocol shall be established so as to maximize the total number of organs and/or tissues available for donation and transplantation. Organs and/or tissues designated by virtue of this protocol shall be recovered. The protocol shall be reviewed and evaluated on an annual basis.
(d) This subsection (6) shall stand repealed on June 30, 2007.
(7) Performance improvement record reviews of deceased patients' medical records shall be conducted by the organ procurement organization for each hospital having more than ninety-five (95) licensed acute care beds and general surgical capability. These reviews must be performed in the first four (4) months of a calendar year for the previous calendar year. If the organ procurement organization and hospital mutually agree, the performance improvement record reviews may be performed more frequently. Aggregate data concerning these reviews shall be submitted by the organ procurement organization to the State Department of Health by July 1 of each year for the preceding year.
(8) No organ or tissue recovered in the State of Mississippi may be shipped out of the state except through an approved organ sharing network or, at the family's request, to an approved organ transplant program.
(9) Any hospital, administrator, physician, surgeon, nurse, technician, organ procurement organization, tissue procurement organization or donee who acts in good faith to comply with this section shall not be liable in any civil action to a claimant who alleges that his consent for the donation was required.
(10) Nothing in this section shall be construed to supersede or revoke, by implication or otherwise, any valid gift of the entire body to a medical school.
(11) A gift of all or part of the body made (a) by will, (b) under a Durable Power of Attorney for Health Care declaration under Section 41-41-209, (c) under a Withdrawal of Life-Saving Mechanism (Living Will) declaration under former Section 41-41-107 (now repealed), or (d) under an Anatomical Gift Act declaration under Section 41-39-39, shall supersede and have precedence over any decision by the family of the individual making the organ donation.
SECTION 4. Section 41-61-59, Mississippi Code of 1972, is amended as follows:
41-61-59. (1) A person's death that affects the public interest as specified in subsection (2) of this section shall be promptly reported to the medical examiner by the physician in attendance, any hospital employee, any law enforcement officer having knowledge of the death, the embalmer or other funeral home employee, any emergency medical technician, any relative or any other person present. The appropriate medical examiner shall notify the municipal or state law enforcement agency or sheriff and take charge of the body. 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 medical examiner's authority over the body shall be subject to the provisions of Section 41-39-15(6). The appropriate medical examiner shall notify the Mississippi Bureau of Narcotics within twenty-four (24) hours of receipt of the body in cases of death as described in subsection (2)(m) or (n) of this section.
(2) A death affecting the public interest includes, but is not limited to, any of the following:
(a) Violent death, including homicidal, suicidal or accidental death.
(b) Death caused by thermal, chemical, electrical or radiation injury.
(c) Death caused by criminal abortion, including self-induced abortion, or abortion related to or by sexual abuse.
(d) Death related to disease thought to be virulent or contagious that may constitute a public hazard.
(e) Death that has occurred unexpectedly or from an unexplained cause.
(f) Death of a person confined in a prison, jail or correctional institution.
(g) Death of a person where a physician was not in attendance within thirty-six (36) hours preceding death, or in prediagnosed terminal or bedfast cases, within thirty (30) days preceding death.
(h) Death of a person where the body is not claimed by a relative or a friend.
(i) Death of a person where the identity of the deceased is unknown.
(j) Death of a child under the age of two (2) years where death results from an unknown cause or where the circumstances surrounding the death indicate that sudden infant death syndrome may be the cause of death.
(k) Where a body is brought into this state for disposal and there is reason to believe either that the death was not investigated properly or that there is not an adequate certificate of death.
(l) Where a person is presented to a hospital emergency room unconscious and/or unresponsive, with cardiopulmonary resuscitative measures being performed, and dies within twenty-four (24) hours of admission without regaining consciousness or responsiveness, unless a physician was in attendance within thirty-six (36) hours preceding presentation to the hospital, or in cases in which the decedent had a prediagnosed terminal or bedfast condition, unless a physician was in attendance within thirty (30) days preceding presentation to the hospital.
(m) Death that is caused by drug overdose or which is believed to be caused by drug overdose.
(n) When a stillborn fetus is delivered and the cause of the demise is medically believed to be from the use by the mother of any controlled substance as defined in Section 41-29-105.
(3) The State Medical Examiner is empowered to investigate deaths, under the authority hereinafter conferred, in any and all political subdivisions of the state. The county medical examiners and county medical examiner investigators, while appointed for a specific county, may serve other counties on a regular basis with written authorization by the State Medical Examiner, or may serve other counties on an as-needed basis upon the request of the ranking officer of the investigating law enforcement agency. The county medical examiner or county medical examiner investigator of any county that has established a regional medical examiner district under subsection (4) of Section 41-61-77 may serve other counties that are parties to the agreement establishing the district, in accordance with the terms of the agreement, and may contract with counties that are not part of the district to provide medical examiner services for those counties. If a death affecting the public interest takes place in a county other than the one where injuries or other substantial causal factors leading to the death have occurred, jurisdiction for investigation of the death may be transferred, by mutual agreement of the respective medical examiners of the counties involved, to the county where the injuries or other substantial causal factors occurred, and the costs of autopsy or other studies necessary to the further investigation of the death shall be borne by the county assuming jurisdiction.
(4) The chief county medical examiner or chief county medical examiner investigator may receive from the county in which he serves a salary of Nine Hundred Dollars ($900.00) per month, in addition to the fees specified in Sections 41-61-69 and 41-61-75, provided that no county shall pay the chief county medical examiner or chief county medical examiner investigator less than One Hundred Dollars ($100.00) per month as a salary, in addition to other compensation provided by law. In any county having one or more deputy medical examiners or deputy medical examiner investigators, each deputy may receive from the county in which he serves, in the discretion of the board of supervisors, a salary of not more than Nine Hundred Dollars ($900.00) per month, in addition to the fees specified in Sections 41-61-69 and 41-61-75. For this salary the chief shall assure twenty-four-hour daily and readily available death investigators for the county, and shall maintain copies of all medical examiner death investigations for the county for at least the previous five (5) years. He shall coordinate his office and duties and cooperate with the State Medical Examiner, and the State Medical Examiner shall cooperate with him.
(5) A body composed of the State Medical Examiner, whether appointed on a permanent or interim basis, the Director of the State Board of Health or his designee, the Attorney General or his designee, the President of the Mississippi Coroners' Association (or successor organization) or his designee, and the State Pathologist * * * shall adopt, promulgate, amend and repeal rules and regulations as may be deemed necessary by them from time to time for the proper enforcement, interpretation and administration of Sections 41-61-51 through 41-61-79, in accordance with the provisions of the Mississippi Administrative Procedures Law, being Section 25-43-1 et seq.
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, by the State Pathologist or by another competent pathologist designated by the State Medical Examiner. The State Medical Examiner, State Pathologist 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, State Pathologist 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, the State Pathologist or * * * designated pathologist, 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 petitioning and hearing shall be borne by the petitioner.
SECTION 6. Section 41-61-75, Mississippi Code of 1972, is amended as follows:
41-61-75. (1) For each investigation with the preparation and submission of the required reports, the following fees shall be billed to and paid by the county for which the service is provided:
(a) A medical examiner or his deputy shall receive Eighty-five Dollars ($85.00) for each completed report of investigation of death, plus the examiner's actual expenses.
(b) The pathologist designated by the State Medical Examiner to perform autopsies as provided in Section 41-61-65 shall receive Five Hundred Fifty Dollars ($550.00) per completed autopsy, plus mileage expenses to and from the site of the autopsy.
(2) Any medical examiner, physician or pathologist who is subpoenaed for appearance and testimony before a grand jury, courtroom trial or deposition shall be entitled to an expert witness hourly fee to be set by the court and mileage expenses to and from the site of the testimony, and such amount shall be paid by the jurisdiction or party issuing the subpoena.
SECTION 7. Section 41-61-77, Mississippi Code of 1972, is amended as follows:
41-61-77. (1) The Department of Public Safety shall establish and maintain a central office for the Mississippi Crime Laboratory, the State Medical Examiner and the State Pathologist with appropriate facilities and personnel for postmortem medicolegal examinations. District offices, with appropriate facilities and personnel, may also be established and maintained if considered necessary by the department for the proper management of postmortem examinations.
The facilities of the central and district offices and their staff services may be available to the medical examiners, State Pathologist and designated pathologists in their investigations.
(2) In order to provide proper facilities for investigating deaths as authorized in Sections 41-61-51 through 41-61-79, the State Medical Examiner may arrange for the use of existing public or private laboratory facilities. The State Medical Examiner may contract with qualified persons to perform or to provide support services for autopsies, studies and investigations not inconsistent with other applicable laws. Such laboratory facilities may be located at the University of Mississippi Medical Center or any other suitable location. The State Medical Examiner may also serve as a member of the faculty at the University of Mississippi Medical Center and other institutions of higher learning. He shall be authorized to employ, with the approval of the Commissioner of Public Safety, such additional scientific, technical, administrative and clerical assistants as are necessary for performance of his duties. Such employees in the office of the State Medical Examiner shall be subject to the rules, regulations and policies of the state personnel system in their employment.
(3) The State Medical Examiner shall be authorized to appoint and/or employ qualified pathologists as additional associate and assistant state medical examiners as are necessary to carry out the duties of his office. The associate and assistant state medical examiners shall be licensed to practice medicine in Mississippi and, insofar as practicable, shall be trained in the field of forensic pathology. The State Medical Examiner may delegate specific duties to competent and qualified medical examiners within the scope of the express authority granted to him by law or regulation. Employees of the office of the State Medical Examiner shall have the authority to enter any political subdivisions of this state for the purpose of carrying out medical investigations.
(4) The board of supervisors of any two (2) or more adjacent counties may enter into written agreements with one another, in accordance with Section 17-13-1 et seq., to establish regional medical examiner districts for the purposes of providing and coordinating medical examiner services on a regional basis, establishing central forensic facilities for the counties involved, and employing or contracting with one or more pathologists to serve as medical examiners of the district, who will perform postmortem examinations and autopsies for the counties involved. Any powers which may be exercised under this chapter by an individual county, county medical examiner or county medical examiner investigator may be exercised jointly with any other county or with the county medical examiner or county medical examiner investigator of such other county, in accordance with the terms of the agreement between the counties involved. Any county entering into such an agreement shall be authorized to expend any funds necessary to carry out the purposes of such agreement. Any municipality located within any such district is * * * authorized and empowered to contribute funds to such district. For any such district established, the counties involved shall attempt to coordinate the operation of the district and any district facilities with the operation of any district office or offices established by the State Medical Examiner under subsection (1) of this section which include such counties. The medical examiners authorized in this subsection shall have the same authority within a medical examiner district and the counties served by such district as does the State Medical Examiner.
SECTION 8. This act shall take effect and be in force from and after July 1, 2007.