ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 540
(Originating in the Committee on Finance)
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[Passed March 11, 2000; in effect ninety days from passage.]
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AN ACT 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 chief medical examiner is hereby established
within the division of health in the department of health and human resources. The office shall be directed by a chief medical
examiner, who may employ pathologists, toxicologists, other
forensic specialists, laboratory technicians, and other staff
members, as needed to fulfill the responsibilities set forth in
this article.
(b) All persons employed by the chief medical examiner shall
be responsible to him or her and may be discharged for any
reasonable cause. The chief medical examiner shall specify the
qualifications required for each position in the office of chief
medical examiner, and each position shall be subject to rules
prescribed by the secretary of the department of health and human
resources.
(c) The chief medical examiner shall be a physician licensed
to practice medicine or osteopathic medicine in the state of West
Virginia, who is a diplomat 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.
(d) The chief medical examiner shall be responsible to the
director of the division of health 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.
(e) 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.
(f) 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; and
(4) The training and certification of county medical examiners
and coroners.
(g) The chief medical examiner is authorized to prescribe
specific forms for record books and official papers which are
necessary to the functions and responsibilities of the office of
the chief medical examiner.
(h) 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.
(i) The salary of the chief medical examiner and the salaries
of all assistants and employees of the office of the chief medical
examiner shall be fixed by the Legislature from funds appropriated
for that purpose. The chief medical examiner shall take an oath
and provide a bond as required by law. Within the discretion of
the 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 West Virginia state
police, other law-enforcement agencies and other interested groups.
§61-12-4. Central office and laboratory.
The 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. 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, the salaries of
all assistants and employees 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 persons other than the chief
medical examiner and his assistants 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 for
the investigation of 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 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.
Qualified pathologists shall hold board certification or board
eligibility in forensic pathology or have completed an American
board of pathology fellowship in forensic pathology.
§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 medically trained and licensed by
the state of West Virginia as a physician, registered nurse,
paramedic, emergency medical technician or a physician assistant,
be certified in the practice of medicolegal death investigation and
be of good moral character. 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 a county medical examiner need not be a
resident of the county which he or she serves. If the chief
medical examiner determines that it is necessary, he or she may
appoint any person medically trained and licensed by the state of
West Virginia as a physician, registered nurse, paramedic,
emergency medical technician or a physician assistant and of good
moral character 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, or from some disease which might constitute a threat
to public health, or in any suspicious, unusual or unnatural
manner, the chief medical examiner, or his or her designee or the
county medical examiner, or the coroner of the county in which
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 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
notification requirement is guilty of a misdemeanor and, upon
conviction, shall be fined not less than one hundred dollars nor
more than five hundred dollars. Upon notice of a death under this
section, the chief medical examiner, or his or her designee or the
county medical examiner, shall take charge of the 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.
In the
course of an investigation of a death required to be reported by
this section, the chief medical examiner shall, upon written
request to any law-enforcement agency or any state or regional
correctional facility, be provided with all records of the
investigation of decedent's death and all records of decedent's
incarceration. Where a decedent received therapeutic, corrective 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 investigation records, incarceration records or medical records related to the case. Where records of a decedent
become part of the chief medical examiner's file, they are not
subject to subpoena or a request for production directed to the
chief medical examiner.
(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.
(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 the cremation from the chief
medical examiner, the county medical examiner or county coroner of
the county wherein the death occurred, and any person or persons who willfully fail to secure the permit, upon conviction thereof,
shall be fined not less than two hundred dollars A permit for
cremation shall be acted upon by the chief medical examiner, the
county medical examiner or the county coroner after review of the
circumstances surrounding the death, as indicated by the death
certificate. 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 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, an
autopsy shall be conducted by the chief medical examiner or his or
her designee, by a member of his staff, or by a competent
pathologist designated and employed by the chief medical examiner under the provisions of this article. For this purpose, the chief
medical examiner may employ any county medical examiner who is a
pathologist who holds board certification or board eligibility in
forensic pathology or has completed an American Board of Pathology
fellowship in forensic pathology to make the autopsies, and the
fees to be paid for autopsies under this section shall be in
addition to the fee provided for investigations 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 the
chief medical examiner by the person making the autopsy.
(b) Within the discretion of the chief medical examiner, or of
the person making the autopsy, or if requested by the prosecuting
attorney of the county, or of the county where any injury
contributing to or causing the death was sustained, a copy of the
report of the autopsy shall be furnished to the prosecuting
attorney.
(c) The office of 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 these records or
information necessary for the performance of his or her official duties.
(d) Copies of these records or information shall be furnished,
upon request, to any 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. The office of chief
medical examiner shall be reimbursed a reasonable rate by the
requesting party for costs incurred in the production of records
under this subsection and subsection (c) of this section.
(e) The chief medical examiner is authorized to release
investigation records and autopsy reports to the multidisciplinary
team authorized by section three, article five-d, chapter forty-
nine of this code. At the direction of the secretary of the
department of health and human resources the chief medical examiner
may release records and information to other state agencies when
considered to be in the public interest.
(f) Any person performing an autopsy under this section 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.
(g) 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 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 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 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 the chief medical examiner. Transportation at state
expense shall be provided from the place where the body is being
kept at the time the examination is ordered to the central
laboratory or other place of examination, and, upon completion of
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 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
examination. The payment shall be of a reasonable amount set by
the office of the chief medical examiner, including, but not
limited to, payment of any part of the total cost as the 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 is the
duty of the chief medical examiner or the county medical examiner
or coroner, upon being advised of this fact, to notify the
prosecuting attorney of the county, who shall communicate the same
to the judge of the circuit court or other court of record having
jurisdiction in the county and 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 the county.
§61-12-12. Facilities and services available to medical examiners.
Pursuant to rules promulgated by the secretary of the
department of health and human resources, the facilities of the office of 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 the chief medical examiner or in
the office of any county 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 the chief medical examiner or in the office of any county
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, 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 is the duty of the county commission of every county, from
time to time, to appoint a coroner for the county, who shall hold
the office during the pleasure of the commission and shall take the
oath of office prescribed for other county officers. The county
coroners shall be certified in medicolegal investigations, be
continually available to perform the duties required under this
article and shall be paid such fees or amounts for the services as
may be fixed by the chief medical examiner.
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