House Bill 881

AN ACT TO AMEND SECTION 41-37-5, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ONLY PHYSICIANS WHO ARE CERTIFIED PATHOLOGISTS MAY PERFORM AUTOPSIES; TO AMEND SECTION 41-61-65, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE STATE MEDICAL EXAMINER MAY PERFORM AUTOPSIES IF HE IS A PATHOLOGIST; TO AMEND SECTIONS 41-37-7, 41-37-9, 41-37-11, 41-37-13, 41-37-15, 41-37-21, 41-37-23 AND 41-37-25, 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. Section 41-37-5, Mississippi Code of 1972, is amended as follows:

41-37-5. Only a physician duly licensed by the * * * State Board of Medical Licensure who is a certified pathologist may perform an autopsy.

SECTION 2. 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, if he is a pathologist, 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, if he is a pathologist, or by his 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 * * * performing authorized investigations and any pathologist performing authorized 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 3. Section 41-37-7, Mississippi Code of 1972, is amended as follows:

41-37-7. A pathologist authorized to perform an autopsy as provided in this chapter, * * * who in good faith complies with the provisions of this chapter in the performance of an autopsy, shall not be liable for damages on account thereof.

SECTION 4. 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 termtime 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 may be found shall take the body and keep it in a suitable place until the autopsy has been performed. If an autopsy is ordered as provided in this section, the petitioner shall immediately secure the services of a qualified pathologist to perform the autopsy.

SECTION 5. Section 41-37-11, Mississippi Code of 1972, is amended as follows:

41-37-11. The pathologist performing the autopsy in criminal investigations may obtain the services of a chemist competent to make a chemical analysis, or those services may be ordered by the judge or chancellor in termtime or in vacation. The records of the chemical analysis shall be made a part of the autopsy report.

SECTION 6. Section 41-37-13, Mississippi Code of 1972, is amended as follows:

41-37-13. In all cases where an autopsy is performed as provided in Section 41-37-9, the pathologist making the autopsy shall file a report, in duplicate, of the autopsy with the circuit clerk of the county where the death is being investigated. The circuit clerk shall keep and preserve the report and make it available to the district attorney, county prosecuting attorney, grand jury, coroner, and to the accused.

SECTION 7. Section 41-37-15, Mississippi Code of 1972, is amended as follows:

41-37-15. The pathologist performing the autopsy shall be paid a fee not exceeding the sum of Four Hundred Dollars ($400.00), which sum shall be paid out of the treasury of the county in the interest of which the autopsy was ordered, upon the allowance and warrant of the board of supervisors of the county. * * *

A chemist whose services are used under Section 41-37-11 may be paid a fee not to exceed Sixty Dollars ($60.00) for that chemical analysis. The fee of the chemist for that analysis shall be paid in like manner as that of the autopsy pathologist.

SECTION 8. Section 41-37-21, Mississippi Code of 1972, is amended as follows:

41-37-21. The pathologist performing the autopsy or the chemist performing the analysis in criminal investigations may be subpoenaed as a witness in any such criminal case. If subpoenaed as a prosecution witness, he shall be paid a fee of Fifty Dollars ($50.00) per day as an expert witness for each day while in attendance at the trial, and in addition thereto he shall be paid Seven Cents (7¢) per mile for travel from his home to the location of the trial and return. The fees * * * provided for in this section shall be paid to prosecution witnesses as otherwise provided for by law for the payment of * * * witness fees. If subpoenaed as a witness by the defense, the pathologist or chemist may collect a fee from the defendant not to exceed that prescribed in this section for prosecution witnesses.

SECTION 9. Section 41-37-23, Mississippi Code of 1972, is amended as follows:

41-37-23. The executive officer of the * * * 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 those cases, the same fees as specified in criminal investigations to the autopsy pathologist 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 pathologist or chemist who is a regular salaried employee of the state or county. A copy of the report of the autopsy pathologist 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 the county and with the executive officer of the State Board of Health.

SECTION 10. Section 41-37-25, Mississippi Code of 1972, is amended as follows:

41-37-25. An autopsy may be performed without court order by a qualified pathologist when authorized by (a) the decedent, during his lifetime, or (b) any of the following persons who * * * have assumed custody of the body for the purpose of burial: a surviving spouse, either parent or any person in loco parentis, a descendant over the age of eighteen (18) years, a guardian, or the next of kin. In the absence of any of the foregoing persons, any friend of the deceased who has assumed responsibility for burial, or any other person charged by law with responsibility for burial, may give that consent. If two (2) or more persons have assumed custody of the body of an adult for purposes of burial, the consent of one (1) of those persons shall be deemed sufficient.

In the case of a minor, however, the consent of either parent shall be deemed sufficient, unless the other parent gives written notice to the pathologist who is to perform the autopsy of the parent's objection thereto before the commencement of the autopsy. If neither parent has legal custody of the minor, the guardian shall have the right to authorize an autopsy. The fees provided in this chapter for autopsies in criminal investigations shall not be applicable to this section.

No autopsy shall be held under this section over the objection of the surviving spouse, or if there is no surviving spouse, or any surviving parent, or if there is neither a surviving spouse nor parent, then of any surviving child.

SECTION 11. This act shall take effect and be in force from and after July 1, 2004.