The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6696

August 23, 1991

COUNTY MEDICAL EXAMINER:

Performance of autopsy

A county medical examiner is without statutory authority to perform an autopsy upon the body of the deceased, even if requested to do so, if he or she determines the autopsy is not required by law.

Honorable Richard A. Bandstra

State Representative

The Capitol

Lansing, MI 48913

You have requested my opinion on the following question:

Where a local health officer also serves as the county medical examiner, does that medical examiner have the statutory authority under the Public Health Code to require the payment of fees prior to performing an autopsy when, in his/her professional opinion, an autopsy is not required by law?

The Public Health Code, section 2855, MCL 333.2855; MSA 14.15(2855), prohibits a physician from performing an autopsy without written permission of certain designated persons. This prohibition, however, does not prevent an autopsy by a county medical examiner, a department of anatomy in a school of medicine in Michigan or a local health officer, if necessary to carry out the functions vested in a local health department by the Public Health Code.

1953 PA 181, MCL 52.201 et seq; MSA 5.953(1) et seq (the Act), provides for the office of county medical examiner and sets forth the powers and duties of that office. By the enactment of 1969 PA 92, counties were required to abolish the office of county coroner and the powers and duties of that office were transferred to the office of county medical examiner pursuant to sections 1 and 13a of the Act.

As the successor to the office of coroner, the county medical examiner's powers have been established by the Legislature to conduct investigations of certain deaths and examinations of bodies, including the performance of autopsies. As required by section 2 of the Act, the medical examiner "shall make investigations as to the cause and manner of death in all cases of persons who have come to their death by violence; or whose death was unexpected; or without medical attendance during the 48 hours prior to the hour of death unless the attending physician, if any, is able to determine accurately the cause of death; or as a result of an abortion" and shall examine the bodies of prisoners who expire in a county or city jail.

The statutory power of a county medical examiner to perform autopsies, conferred by section 5(3) of the Act, is cast in permissive terms, to be performed upon a body brought to the attention of the medical examiner "to have come to his or her death in a manner indicated in section 3 [of the Act]." Section 5(1) of the Act. The manner of death specified in section 3 of the Act relates to the "death of any person who shall have died suddenly, unexpectedly, accidentally, violently, or as a result of any suspicious circumstances, or without medical attendance during 48 hours prior to the hour of death unless the attending physician, if any, is able to determine accurately the cause of death" or if death is caused by abortion.

Section 5(4) of the Act expressly provides, in pertinent part:

The county medical examiner may conduct an autopsy if he or she determines that an autopsy reasonably appears to be required pursuant to law. [Emphasis added.]

In conducting an investigation of the cause of a death within the classes of death enumerated in the Act, the county medical examiner has the discretion to perform an autopsy. O'Toole v. Fortino, 97 MichApp 797, 811; 295 NW2d 867 (1980).

The Legislature has also made provision for the parents or guardians of children under the age of two years who experience sudden death, cause unknown, or who are found dead, cause unknown, to request the county medical examiner to perform an autopsy with the cost of the autopsy to be borne by the state. Section 5a of the Act. The Act contains no other provisions for the performance of autopsies by the county medical examiner.

The Michigan Court of Appeals examined the authority of a county medical examiner to perform autopsies in Burse v. Wayne County Medical Examiner, 151 MichApp 761, 766; 391 NW2d 479 (1986). Citing sections 2 and 5 of the Act, and reading them together, the court concluded that the county medical examiner may conduct an autopsy upon his determination that an autopsy is reasonably necessary based upon the duty to make investigations of unexpected deaths. In so concluding, however, the court recognized that the authority of the county medical examiner to perform autopsies is limited to those circumstances authorized by the Act.

A medical examiner is authorized to perform an autopsy only as part of an investigation or examination of the death of a person which was unexpected, sudden, violent, accidental, or without medical attention within 48 hours of death. OAG, 1989-1990, No 6565, p 40, 43 (January 30, 1989). When the medical examiner determines as part of his investigation or examination that the autopsy is not required by law, the county medical examiner is not authorized to perform the autopsy even though requested to do so.

The courts of other states have also concluded that medical examiners may only perform those autopsies authorized by statute. Scarpaci v. Milwaukee County, 96 Wis2d 663; 292 NW2d 816, 822, 824 (1980); State v. Chambers, 144 Vt 234; 477 A2d 110, 113 (1984).

This opinion does not address the situation where a county medical examiner concludes an autopsy is not required by law and the county prosecutor or other appropriate party seeks a court order to compel an autopsy by the county medical examiner. Nor does this opinion address the authority of a local health officer, acting solely in that capacity, to perform an autopsy.

It is my opinion, therefore, that a county medical examiner is without statutory authority to perform an autopsy upon the body of the deceased, even if requested to do so, if he or she determines the autopsy is not required by law.

Frank J. Kelley

Attorney General