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Private Autopsy? Understanding Virginia Law on Who Can Request One, and the Autopsy Laws That Apply

Our law firm is often contacted about potential personal injury and/or wrongful death actions when a family member believes medical malpractice was committed at a hospital in Virginia Beach, Norfolk, or Chesapeake. When an unexplained or sudden death of a person occurs in the hospital from circumstances unrelated to the reason for hospitalization, family members often look into obtaining a private autopsy not done by the hospital where the death occurred.

Potential Conflict of Interest?

In unusual deaths that occurred at a hospital, which initially seem unrelated to the planned hospital treatment, many times the doctors at the hospital or the risk management department of the hospital want to have a pathologists working out of the hospital conduct the autopsy. When this occurs, the autopsy will be paid for by the hospital and not the family. The can be a benefit to the family members since they are not paying for the autopsy. And while the pathology group might not be employed by the hospital, where the pathology group routinely works with the physicians at the hospital where the death occurred, there is the possibility of the appearance of a potential conflict of interest. A number of family members we have represented over the years mentioned they were not comfortable with having the hospital conduct an autopsy when they suspected medical malpractice by one of the doctors practicing at the facility.

There are a number of pathologists working in Virginia who will conduct a private autopsy in coordination with the funeral home selected by the family but these decisions must be made very quickly, because most families do not want to interfere with the orderly process of a funeral. However, if a private autopsy decision is made within the first 24 hours after death, a private autopsy can be conducted so as not to interfere with a funeral and will not interfere with the right to have an open casket if things are promptly handled in coordination with the funeral home.

If you lost a loved one, take a moment to download our free legal guide detailing your legal rights and the steps that need to be taken to pursue financial restitution for you and your family.

Examples

In one recent case a major infection spread to a patient’s leg and the family believed that the physician did not appropriately take care of controlling and analyzing the leg infection, leading to an amputation, and then causing the patient’s untimely death. The hospital immediately convinced the daughter to authorize an autopsy which of course was going to be conducted by the pathology group that routinely and daily reviewed pathology for physicians at the hospital. Our choice was to advise the family to go to an outside pathologist and an outside private autopsy but of course this would cost the family many thousands of dollars, which would not be required if the hospital arrange the autopsy with its pathology group that had privileges at the hospital. We did not interfere with the family decision.

We had another case involving a registered nurse who declined after a particular surgery, and the family suspected an independent act of medical malpractice by a physician, that had nothing to do with the surgery for which she was admitted. The family contacted us and we advise them to obtain a private autopsy at an outside facility which they promptly arranged. The funeral home that they selected made arrangements to transport their loved one’s body to the pathology group for the private autopsy and then the funeral home returned the body and there was no delay in the funeral.

An autopsy is important in some cases of potential medical negligence because even if the autopsy does not prove any medical negligence occurred before death, it can rule out other causes. This can help strengthen your case if a doctor tries to blame some pre-existing condition or other issue. The private autopsy provides the medical evidence to show that the pre-existing condition did not contribute to the cause of death, as just one example.

Does a written power of attorney give authority?

In some cases we have been contacted with regard to the topic of autopsies and the family member has said that they have a power of attorney from the person that passed away suddenly. However we need to explain to those family members that a power of attorney is effective during life, and the power of attorney ceases to be effective at the moment of death. So a written power of attorney is of no effect after the death of a loved one. Fortunately Virginia law has provisions on who can authorize the autopsy which do not require a written instrument or power of attorney as explained below.

Who can authorize a private autopsy?

There is a Virginia statute that outlines authorize an autopsy and typically a spouse or an adult son or daughter or a parent or even an adult brother or sister has authority to order and autopsy as set forth in the Virginia code below.

§ 54.1-2973. Persons who may authorize postmortem examination of decedent's body.

Any of the following persons, in order of priority stated, may authorize and consent to a postmortem examination and autopsy on a decedent's body for the purpose of determining the cause of death of the decedent, for the advancement of medical or dental education and research, or for the general advancement of medical or dental science, if: (i) no person in a higher class exists or no person in a higher class is available at the time authorization or consent is given, (ii) there is no actual notice of contrary indications by the decedent, and (iii) there is no actual notice of opposition by a member of the same or a prior class.

The order of priority shall be as follows:

(1) any person designated to make arrangements for the disposition of the decedent's remains upon his death pursuant to § 54.1-2825;

(2) the spouse;

(3) an adult son or daughter;

(4) either parent;

(5) an adult brother or sister;

(6) a guardian of the person of the decedent at the time of his death; or

(7) any other person authorized or under legal obligation to dispose of the body. 

If the physician or surgeon has actual notice of contrary indications by the decedent or of opposition to an autopsy by a member of the same or a prior class, the autopsy shall not be performed. The persons authorized herein may authorize or consent to the autopsy after death or before death.  In cases of death where official inquiry is authorized or required by law, the provisions of Article 1 (§ 32.1-277 et seq.) of Chapter 8 of Title 32.1 shall apply. If at the time of death, a postmortem examination is authorized or required by law, any prior authorization or consent pursuant to this section shall not be valid unless the body is released by the Office of the Chief Medical Examiner.  A surgeon or physician acting in accordance with the terms of this section shall not have any liability, civil or criminal, for the performance of the autopsy.

Don’t mix up medical examiner autopsy and private autopsy

Many callers are mixed up about an autopsy conducted by the state of Virginia medical examiners versus a private autopsy.  In cases of sudden unusual deaths or a laundry list of unexpected or unnatural deaths, a medical examiner working for the Commonwealth of Virginia can order an autopsy, and there’s no cost to the family because it’s being done under Virginia law. The good part is there should be no conflict of interest with regard to a sudden or unnatural death that a hospital. Medical examiners working for the state are medical pathologists and they will make their autopsy findings available to the family at the appropriate time. There are provisions of the Virginia code that specify that physicians or law enforcement should notify the medical examiner so they can do an autopsy.  So if a medical examiner is planning to do an autopsy there is no right for the family to get a private autopsy unless they actually wanted it done after the chief medical examiner completed the autopsy provided for by Virginia law.

The family will be told if the chief medical examiner is doing an autopsy promptly upon a death at a hospital, and assuming no doctor tells the family members of such intervention then the family has the decision-making over obtaining a private autopsy.

The Virginia code section below outlines when the Medical Examiner’s Office of Virginia gets involved.

§ 32.1-283. Investigation of deaths; obtaining consent to removal of organs, etc.; fees.

A. Upon the death of any person from trauma, injury, violence, poisoning, accident, suicide or homicide, or suddenly when in apparent good health, or when unattended by a physician, or in jail, prison, other correctional institution or in police custody, or who is an individual receiving services in a state hospital or training center operated by the Department of Behavioral Health and Developmental Services, or suddenly as an apparent result of fire, or in any suspicious, unusual or unnatural manner, or the sudden death of any infant the Office of the Chief Medical Examiner shall be notified by the physician in attendance, hospital, law-enforcement officer, funeral director, or any other person having knowledge of such death. Good faith efforts shall be made by any person or institution having initial custody of the dead body to identify and to notify the next of kin of the decedent. Notification shall include informing the person presumed to be the next of kin that he has a right to have identification of the decedent confirmed without due delay and without being held financially responsible for any procedures performed for the purpose of the identification. Identity of the next of kin, if determined, shall be provided to the Office of the Chief Medical Examiner upon transfer of the dead body.

Have Questions or Want to Discuss Your Potential Medical Malpractice Wrongful Death Case? Contact Our Firm Today

We hope this page has been helpful to you or family member looking into the circumstances of a very unusual or untimely death of a family member. If you have any questions about this complicated area of law, contact our law firm for free confidential consultation with regard to a wrongful death involving personal injury or potential medical negligence.

Richard N. Shapiro
Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia