Senate Bill No. 540

(By Senator Walker and Hunter)

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[Introduced February 18, 2000; referred to the Committee on Health and Human Resources; and then to the Committee on Finance.]
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A BILL to amend and reenact sections three, four, five, six, seven, eight, nine, ten, ten-a, eleven, twelve, thirteen and fourteen, article twelve, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating generally to postmortem examinations and the office of the chief medical examiner; stating more explicit qualifications for position of chief medical examiner; specifying term of appointment for same; providing independent authority of same for certain purposes; requiring continuous availability for consultation; directing the secretary of the department of health and human resources to propose certain legislative rules; authorizing certain agreements for use of fixtures, facilities and services; specifying additional qualifications and providing for compensation of pathologists performing services for the chief medical examiner; providing for appointment, compensation and removal of county medical examiners and assistant county medical examiners; powers and duties of same; providing for disclosure of certain medical records in death investigations; providing for certain fines and fees; providing for release of certain records under certain circumstances; requiring certain notice in cases of sudden infant death syndrome; and making technical changes and corrections.

Be it enacted by the Legislature of West Virginia:
That sections three, four, five, six, seven, eight, nine, ten, ten-a, eleven, twelve, thirteen and fourteen, article twelve, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 12. POSTMORTEM EXAMINATIONS.
§61-12-3. Office of chief medical examiner established; appointment, duties, etc., of chief medical examiner; assistants and employees; promulgation of rules.

(a) The office of medical examinations chief medical examiner is hereby established to be operated under the control and supervision of the director of the department of health within the division of health in the department of health and human resources. Such The office shall be directed by a chief medical examiner, who shall be appointed by the director. The chief medical examiner may employ assistants, pathologists, toxicologists, other forensic specialists, laboratory technicians, regional medical examiners and other staff members, as the (director) may specify needed.
(b) All persons employed by the chief medical examiner shall be responsible to him or her and may be discharged by him for any reasonable cause. The chief medical examiner shall specify the qualifications required for each position in the office of medical examinations office of chief medical examiner and each position shall be subject to such rules and regulations as the chief medical examiner may prescribe prescribed by the secretary of the department of health and human resources.
The chief medical examiner shall be a physician licensed to practice medicine in West Virginia, who is a diplomate or eligible for certification by the American board of pathology or the American osteopathic board of pathology.
(c) The chief medical examiner shall be a physician duly licensed to practice medicine in the state of West Virginia, who is a diplomate of the American board of pathology in forensic pathology, and who has experience in forensic medicine. The chief medical examiner shall be appointed by the director of the division of health to serve a five-year term unless sooner removed, but only for cause, by the governor or by the director. The chief medical examiner shall be responsible to the director in all matters except that the chief medical examiner shall operate with independent authority for the purposes of:
(1) The performance of death investigations conducted pursuant to section eight of this article;
(2) The establishment of cause and manner of death; and
(3) The formulation of conclusions, opinions or testimony in judicial proceedings.
(d) The chief medical examiner, or his or her designee, shall be available at all times for consultation as necessary for carrying out the functions of the office of the chief medical examiner.
(e) The secretary of the department of health and human resources is hereby directed to propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code concerning:
(1) The proper conduct of medical examinations into the cause of death;
(2) The proper methods and procedures for postmortem inquiries conducted by county medical examiners and coroners;
(3) The examination of substances taken from human remains in order to determine the cause and manner of death;
(4) The training and certification of county medical examiners and coroners; and
(5) The creation of specific forms for record books and official papers which are necessary to the functions and responsibilities of the office of the chief medical examiner.
(f) The chief medical examiner, or his or her designee, is authorized to order and conduct an autopsy in accordance with the provisions of this article and this code. The chief medical examiner, or his or her designee, shall perform an autopsy upon the lawful request of any person authorized by the provisions of this code to request the performance of the autopsy.
(g) The salary of the chief medical examiner and the salaries of all assistants and employees of the office of medical examinations office of the chief medical examiner shall be fixed by the Legislature from funds appropriated for that purpose. The chief medical examiner shall take such an oath and provide such a bond as may be required by law. Within the discretion of the department director of the division of health, the chief medical examiner and his or her assistants shall lecture or instruct in the field of legal medicine and other related subjects to the West Virginia University or Marshall University school of medicine, the West Virginia school of osteopathic medicine, the department of public safety West Virginia state police, other law-enforcement agencies, and other interested groups. §61-12-4. Central office and laboratory.
The office of medical examinations office of the chief medical examiner shall establish and maintain a central office and a laboratory having adequate professional and technical personnel and medical and scientific facilities for the performance of the duties imposed by this article. The central laboratory and office shall be maintained in connection with the facilities of the West Virginia University School of Medicine, and the director is hereby empowered to contract for the use of such facilities. In order to secure facilities sufficient to meet the duties imposed by the provisions of this code, the chief medical examiner is authorized to enter into agreements, subject to the approval of the director of the division of health, with other state agencies or departments, with public or private colleges or universities, schools of medicine or hospitals for the use of laboratories, personnel, equipment and other fixtures, facilities or services.
§61-12-5. Certain salaries and expenses paid by state.

The salaries of the chief medical examiner and the technical and clerical personnel employed in the central office and laboratory, the expenses of maintaining the central office and laboratory, and the cost of pathological, bacteriological and toxicological services rendered by others persons other than the chief medical examiner and his assistants, and of the personnel of the central office and laboratory, shall be paid by the state out of funds appropriated for that purpose.
§61-12-6. Chief medical examiner may obtain additional services and facilities.

Subject to the approval of the director of the division of health, the chief medical examiner may, in order to provide facilities for investigating the cause of death as authorized in this article, employ and pay qualified pathologists and toxicologists to make autopsies, and such pathological and chemical studies and investigations as he or she considers may deem necessary, in the several counties or regions of the state and he or she may arrange for the use of existing laboratory facilities for such purposes. whenever these are available. The director may prepare a list of approved pathologists available for this work in the several counties or sections of the state, and in Qualified pathologists shall hold board certification or board eligibility in forensic pathology. In such case the chief medical examiner may call upon such pathologists where they are available for services in case of need.
§61-12-7. Medical examiners.
(a) The chief medical examiner shall appoint for each county in the state a county medical examiner to serve for a term of three years under the supervision of the chief medical examiner. A county medical examiner shall be of good moral character, qualified in the field of medicine and certified in the practice of medicolegal death investigation. turn over and deliver to his successor in office all of the papers, reports and records of his said office. Medical examiners shall be qualified physicians, licensed to practice medicine in West Virginia County medical examiners are authorized to establish the fact of death, and to make investigations into all deaths in their respective counties that come within the provisions of section eight or ten of this article and shall in timely fashion record findings of an investigation using forms prescribed by the chief medical examiner. A county medical examiner may be removed from office for cause at any time by the chief medical examiner. Any vacancy in the office of county medical examiner shall be filled by the chief medical examiner. One person may be appointed to serve as county medical examiner for more than one county, and the a county medical examiner need not be a resident of the county which he serves. When it becomes necessary, because of illness, absence, need, or personal interest, the chief medical examiner shall have the power to appoint any other qualified physician in the county in which a death is to be investigated, to act as assistant medical examiner for such county. If the chief medical examiner determines that it is necessary, he or she may appoint any person qualified in the field of medicine to act as an assistant county medical examiner for a term of three years. An assistant shall have the same powers and duties as a county medical examiner, and shall perform his or her duties under the supervision of the chief medical examiner.
(b) A county medical examiner or his or her assistant county medical examiner shall, at all times, be available to perform the duties required under this article. He or she shall, additionally, be paid a fee, as determined by the chief medical examiner, but only for the actual performance of his or her duties.
(c) County medical examiners and assistant county medical examiners are authorized to determine the cause and manner of death in any case falling within the provisions of section eight of this article, subject to the supervision of the chief medical examiner, and may exercise any of the powers attendant to the investigation of deaths.
§61-12-8. Certain deaths to be reported to medical examiners; failure to report deaths; investigations and reports; authority of medical examiners to administer oaths, etc., fees.

(a) When any person dies in this state from violence, or by apparent suicide, or suddenly when in apparent good health, or when unattended by a physician, or when an inmate of a public institution, not hospitalized therein for organic disease or from some disease which might constitute a threat to public health, or in any suspicious, unusual or unnatural manner, the chief medical examiner of the county in which such death occurs shall be immediately notified by the physician in attendance, or if no physician is in attendance, by any law-enforcement officer having knowledge of such the death, or by the funeral director, or by any other person present or having knowledge. Any physician or law-enforcement officer, funeral director or embalmer who willfully fails to comply with this section notification requirement shall be is guilty of a misdemeanor and, upon conviction, shall be fined not less than fifty one hundred dollars nor more than five hundred dollars. Upon receipt of such notice of a death under this section, the chief medical examiner shall take charge of the dead body and any objects or articles which, in his or her opinion, may be useful in establishing the cause or manner of death, and deliver them to the law-enforcement agency having jurisdiction in the case. make inquiries regarding the cause and manner of death, reduce his findings to writing, and promptly make a full report thereof to the chief medical examiner on forms prescribed for such purpose, retaining one copy of such report for his own office records, and that of the chief medical examiner and should deliver another copy thereof to the prosecuting attorney of such county, and to any attorney of record in any criminal proceedings or civil action wherein the cause of death is an issue. The medical examiner may administer oaths and affirmations, and take affidavits and make examinations as to any matter within the jurisdiction of his office. The medical examiner shall take possession of any objects or articles which, in his opinion, may be useful in establishing the cause of death, and deliver them to the prosecuting attorney of such county. For each investigation under this section, including the making of the required reports, the medical examiner shall receive such fee as may be determined by the commission on postmortem examinations, which fee shall be paid by the state
In the course of an investigation required by this article where a decedent received therapeutic or medical treatment prior to death, the chief medical examiner may request in writing that any person or other entity which rendered the treatment promptly provide all records within its possession or control pertaining to the decedent and the treatment rendered: Provided, That nothing contained in this section may be construed as precluding the chief medical examiner from directly inspecting or obtaining medical records related to the case. Where medical records of a decedent become part of the chief medical examiner's file, they shall be held confidentially and are not subject to subpoena or a request for production.
(b) A county medical examiner, or his or her assistant, shall make inquiries regarding the cause and manner of death, reduce his or her findings to writing, and promptly make a full report thereof to the chief medical examiner on forms prescribed by the chief medical examiner, retaining one copy of the report for his or her own office records, and providing one copy to the prosecuting attorney of the county in which the death occurred. Any record of findings or any other record required to be made under the direction of the chief medical examiner shall be held confidential and may not be released except upon order of the court and only to parties actually engaged in a criminal proceeding or civil litigation in which the record is found by the court to be material. The office or chief medical examiner shall be reimbursed a reasonable rate by the requesting party for costs incurred in the production of the records.
(c) A county medical examiner or assistant medical examiner shall receive a fee for each investigation performed under the provisions of this article, including the making of required reports, which fee shall be determined by the chief medical examiner and paid out of funds appropriated therefor.
§61-12-9. Permits required for cremation; fee.

It shall be the duty of any person cremating, or causing or requesting the cremation of, the body of any dead person who died in this state, to secure a permit for such the cremation from the chief medical examiner, or from the medical examiner the county medical examiner or county coroner of the county wherein such the death occurred, and any such person or persons who shall willfully fail to secure such the permit, for cremation upon conviction thereof, shall be fined not less than twenty two hundred dollars and not more than five hundred dollars; such A permit for cremation shall be acted upon by the chief medical examiner or the medical examiner as promptly as possible after review of the circumstances surrounding the death, as indicated by the death certificate. A fee of five dollars shall be paid to any medical examiner for his issuance of a permit for cremation, such fee to be paid by the person requesting such permit. The person requesting issuance of a permit for cremation shall pay a reasonable fee, as determined by the chief medical examiner, to the county medical examiner or coroner or to the office of the chief medical examiner, as appropriate, for issuance of the permit.
§61-12-10. When autopsies made and by whom performed; reports; records of date investigated; copies of records and information.

(a) If in the opinion of the chief medical examiner, or of the county medical examiner of the county in which the death in question occurred, it is advisable and in the public interest that an autopsy be made, or if an autopsy be is requested by either the prosecuting attorney or the judge of the circuit court or other court of record having criminal jurisdiction in that county, such an autopsy shall be conducted by the chief medical examiner or his or her designee, by a member of his staff, or by such a competent pathologist as designated and employed by the chief medical examiner shall designate and employ pursuant to under the provisions of this article who is a diplomate or eligible for certification by the American board of pathology in the specialty of forensic pathology. For this purpose, the chief medical examiner may employ any county medical examiner who is a qualified pathologist who holds board certification or board eligibility in forensic pathology to make such the autopsies, and the fees to be paid hereunder for autopsies hereunder under this section shall be in addition to the fee provided for investigations and made pursuant to section eight of this article. A full record and report of the findings developed by the autopsy shall be filed with the office of medical examinations office of the chief medical examiner by such the person making the autopsy.
(b) Within the discretion of the chief medical examiner, or of the person making such the autopsy, or if requested by the prosecuting attorney of such the county, or of the county where any injury contributing to or causing the death was sustained, a copy of such the report of the autopsy shall be furnished such to the prosecuting attorney.
(c) The office of medical examinations the chief medical examiner shall keep full, complete, and properly indexed records of all deaths investigated, containing all relevant information concerning the death, and the autopsy report if such be made. Any prosecuting attorney or law-enforcement officer may secure copies of such these records or information necessary to him for the performance of his or her official duties. Copies of such these records or information shall be furnished, upon request, to any party to whom the cause of court of law, or to the parties therein to whom the cause of death is a material issue, except where the court determines that interests in a civil matter conflict with the interests in a criminal proceeding, in which case the interests in the criminal proceeding shall take precedence. Any person performing an autopsy pursuant to the authority of under this section shall be is empowered to keep and retain, for and on behalf of the chief medical examiner, any tissue from the body upon which the autopsy was performed which may be necessary for further study or consideration.
(d) In cases of the death of any infant in the state of West Virginia where sudden infant death syndrome is the suspected cause of death and the chief medical examiner or the medical examiner of the county in which the death in question occurred considers it advisable to perform an autopsy, it is the duty of the chief medical examiner or the medical examiner of the county in which the death occurred to notify at least one parent or legal guardian in written form of the purpose for the autopsy examination and to provide to the parents or legal guardian(s) a report of the findings of the autopsy examination within thirty days of completion of such examination the sudden infant death syndrome program within the division of maternal and child health and to inform the program of all information to be given to the infant's parents.
§61-12-10a. Costs of transportation of bodies; when state will pay; amount of payment.

Whenever an autopsy examination of a body is ordered pursuant to section eight or ten of this article and the body of the deceased is transported to the central laboratory or other autopsy center of the office of medical examinations place of examination, the reasonable cost of the transportation shall be paid by the state out of funds appropriated to or for the use of the office of medical examinations office of the chief medical examiner. Transportation at state expense shall be provided from the place where the body is being kept at the time the autopsy examination is ordered to the central laboratory or autopsy center other place of examination, and, upon completion of the autopsy the examination, to the place designated by the person entitled to possession of the body: Provided, That if the body is to be returned a greater distance than it was taken for the autopsy examination, the state shall only be obligated for the cost of return of the body equal to or less than that incurred to take the body for the autopsy examination. The payment shall be of a reasonable amount set by the office of medical examinations the chief medical examiner, including, but not limited to, payment of any part of the total cost as the office of medical examinations shall allow office of the chief medical examiner allows.
§61-12-11. Exhumation; when ordered.

If, in any case of sudden, violent or suspicious death, the body is buried without any investigation by the chief medical examiner, or by a county medical examiner or coroner, it shall be is the duty of the chief medical examiner or the county medical examiner or coroner, upon being advised of such this fact, to notify the prosecuting attorney of such the county, who shall communicate the same to the judge of the circuit court or other court of record having jurisdiction in such the county, and such the judge may order that the body be exhumed and an autopsy performed thereon, as provided in section ten of this article, and the pertinent facts disclosed by the autopsy shall be communicated to the prosecuting attorney of such the county. §61-12-12. Facilities and services available to medical examiners. Pursuant to proper rules and regulations as may hereafter be promulgated by the chief medical examiner secretary of the department of health and human resources, the facilities of the office of medical examinations the chief medical examiner and its laboratory, and the services of its professional staff, shall be made available to the county medical examiners and coroners in their investigations under the provisions of section eight of this article, and to the persons conducting autopsies under the provisions of section ten of this article.
§61-12-13. Reports and records received as evidence; copies.
Reports of investigations and autopsies, and the records thereof, on file in the office of medical examinations the chief medical examiner or in the office of any medical examiner, shall be received as evidence in any court or other proceeding, and copies of records, photographs, laboratory findings and records on file in the office of medical examinations office of the chief medical examiner or in the office of any medical examiner, when duly attested by the chief medical examiner or by the county medical examiner, assistant county medical examiner or coroner in whose office the same are filed, shall be received as evidence in any court or other proceeding for any purpose for which the original could be received without any proof of the official character of the person whose name is signed thereto unless objected to by counsel: Provided, however, That statements of witnesses or other persons and conclusions upon extraneous matters are not hereby made admissible.
§61-12-14. County coroners; appointment, oath, etc.; duties; fees.

It shall be is the duty of the county commission of every county, from time to time, to appoint a coroner for such the county, who shall hold his the office during the pleasure of such the commission and shall take the oath of office prescribed for other county officers. The county coroners shall hereafter perform such duties as may be assigned to them under the rules and regulations promulgated by the board of health secretary of the department of health and human resources and shall possess all authority and all duties assigned to county medical examiners as provided under section eight of this article. Coroners and shall be paid such fees or amounts for such the services as may be fixed by the chief medical examiner.
NOTE: The several purposes of this bill are as follows: (1) Stating more explicit qualifications for position of chief medical examiner; (2) specifying the term of appointment for the chief medical examiner; (3)providing independent authority of the chief medical examiner for certain purposes; (4) requiring continuous availability for consultation of the chief medical examiner; (5) directing the secretary of the department of health and human resources to propose certain legislative rules; (6) authorizing certain agreements for use of fixtures, facilities and services; (7) specifying additional required qualifications and providing for compensation of pathologists performing services for the chief medical examiner; (8) providing for the appointment, compensation and removal of county medical examiners and assistant county medical examiners; (9) prescribing powers and duties of county medical examiners; (10) providing for disclosure of certain medical records in death investigations; (11) providing for certain fines and fees; (12) providing for release of certain records under certain circumstances; (13) requiring certain notice in cases of sudden infant death syndrome; and (14) making technical changes and corrections.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.