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Understanding Virginia’s Law on Who Can Request a Private Autopsy

Our Virginia medical malpractice and wrongful death law firm is often contacted by family members who believe a doctor, hospital, pharmacist or some other health care provider made an avoidable error that took the life of their loved one. Especially when an unexplained or sudden death occurs in the hospital from a cause that appears to be unrelated to the reason for the hospitalization, family members want to know if commissioning a private autopsy will answer their questions about what happened.

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Don’t Confuse Work Done by a Medical Examiner With an Autopsy by a Private Pathologist

Medical examiners are government employees. They work for the state, a county or a city. Private pathologists work with hospitals or independent pathology groups. A family member or estate executor can request a private autopsy even if a medical examiner performs a postmortem exam.

A number of Virginia laws require medical examiners to conduct autopsies when people die under unexplained circumstances, from a drug overdose or while in the custody of the state. The principal statue on this is section 32.1-283 of the Virginia Code, which reads, in part,

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.

A family pays nothing for an autopsy performed by a medical examiner, and they can request results from the postmortem exam. When a medical examiner is involved, family members can request a private autopsy only after the government employee completes their work and releases the body.

Who Can Authorize a Private Autopsy?

Doctors involved a patient’s care or the hospital’s risk management depart may request an autopsy after a person under their care dies unexpectedly. Either because that postmortem examination produces inconclusive findings or because family members suspect the findings are incomplete or less-than-trustworthy, an independent private autopsy can be commissioned.

U.S. Air Force photo by William M. Plate Jr. -- https://media.defense.gov/2003/Oct/30/2000596559/1088/820/0/031029-F-1663P-004.JPG

Section 54.1-2973 of the Virginia Code spells out who has authority to order an autopsy. The short answer is that a spouse, adult son or daughter, parent, or adult brother or sister will typically have the legal right to request a postmortem exam by an independent pathologist who does not practice at the hospital where the death occurred.

Reviewing the full text of the statute with a knowledgeable Virginia wrongful death attorney can be in a family member’s best interest, however, because complicated rules apply. Here is what Virginia’s law on requesting a private autopsy says exactly:

 

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.

Note that this law regarding who can request a private autopsy omits any mention of “power of attorney.” When a person grants their family member or someone else power of attorney, that grant of authority only applies to decisions made while the individual is alive. A power of attorney expires at the moment of death. After that, decisions regarding the disposition of a person’s remains and estate transfer to their executor. An executor can be named in a will or trust, or determined under the provisions of laws like the one regarding who can request a private autopsy.

Protecting Against Potential Conflict of Interest

When a doctor or hospital official requests an autopsy, a pathologist affiliated with the hospital performs the postmortem exam. The hospital also pays for the procedure.

Both the close professional relationship and the payment introduce the potential for a conflict of interests. That is, the pathologist who performs an autopsy requested by a hospital or medical colleague may feel pressured or inclined to produce results that favor the hospital.

Hiring an independent pathologist protects against conflicts of interests, but family members must make the decision to do so quickly—usually within 24 hours. Waiting for autopsy results delays the funeral and burial or scattering of ashes. The actual postmortem exam requires only a few hours, but transferring a loved one’s body from the hospital to the funeral home to the pathology practice and back to the funeral home takes time. Also, preparing the body for an open-casket funeral following an autopsy requires extra time.

Making the Decision to Request a Private Autopsy Is Difficult

Commissioning a private autopsy can provide essential evidence for a wrongful death or medical malpractice case. This is true even if the findings are less than 100 percent conclusive. For the purposes of taking legal action against a negligent doctor or hospital, the most important thing a postmortem exam can show is that the person probably died from some preventable cause.

Families may still decide against requesting autopsy, though. In one case, the spouse of a woman who developed a fatal infection following back surgery decided that enough evidence of negligence existed without an autopsy. And, in truth, the price being asked by the independent pathology group deterred the grieving spouse.

In another case, a private autopsy arranged through a funeral home that recommended a reputable independent pathologist yielded key evidence of negligent postsurgical care. Neither choice was unequivocally correct; rather, both were right for the families who made them.

EJL

 

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