Legal, Social, and Ethical Issues

Autopsy Authorization

The laws pertaining to authorization for autopsy vary among the states. Local jurisdictions may establish policies or procedures for compliance, and it behooves the practicing pathologist to know the relevant statutes in his or her region. In the United States, statutes pertaining to human remains stem from Old English common law. Thus, at death, possession or custody of the remains passes to a surviving spouse or legal next of kin. The legal custodian of the deceased has the duty to arrange proper disposition of the remains. Although this individual does not have ordinary property rights to the corpse, he or she may authorize an autopsy; donate tissues, organs, or the entire body for therapeutic or educational purposes; or, following appropriate legal statutes, have the remains cremated or embalmed and moved to a final resting place. The next of kin may place restrictions on the extent and manner in which an autopsy is performed. Any unauthorized dissection may be considered mutilation and is tortious or even criminal. Tissue and organ retention is regulated in the United States under state rather than federal law; other countries such as Australia and the United Kingdom have enacted specific legislation with respect to retention of organs, mostly in response to organ retention controversies starting with public outcry in 1999 regarding organ retention from autopsies performed at a Liverpool children's hospital. Changes in statutes regarding autopsy authorization are evolving in many jurisdictions to increase the autonomy of families to restrict either the extent of autopsy or retention of organs.

Svendsen and Hill surveyed autopsy law in a number of industrialized countries. Although there has been a tendency for countries to enact laws requiring next-of-kin authorization for autopsy, there are still a number of nations (Italy, Austria, and many of the countries of Eastern Europe) that give the authority to perform postmortem examinations to the medical or legal community, or both. In some countries (Denmark, France, Iceland, Norway), objections from members of the decedent's family may prevent autopsies authorized by the medical community.

Not all jurisdictions in the United States specify a strict order of preference for the person from whom permission for autopsy should be obtained. However, many establish a specific priority or rely on the code of common law or the order specified in the probate code ( Box 2-1 ). Variations, restrictions, or exceptions may exist. For example, a legally separated or divorced spouse cannot authorize an autopsy unless he or she has custody of the eldest child if all of the children are minors. Minor emancipated children have full right with respect to their deceased spouse or children and, even if not emancipated, may have custody and the right to authorize autopsy for their children.

States vary in how they legally define stillbirths, and the state definitions and reporting requirements of live births, fetal deaths, and induced terminations of pregnancy are summarized in available government documents. Almost all states define fetal death as “death prior to the complete expulsion or extraction from its mother…irrespective of duration of pregnancy and which is not an induced termination of pregnancy. The death is indicated by the fact that…the fetus does not breathe or show any other evidence of life such as a beating of the heart…or definitive movement of voluntary muscles” effectively corresponding to an Apgar score of zero. Reporting of fetal deaths is required in almost all states for fetuses that are either 20 weeks or more of gestation or more than 350, 400, or 500 grams, depending on the state. Requirements for autopsy authorization usually correspond to the reporting requirements for fetal deaths. For example, in the state of California, stillborn fetuses of less than 20 weeks' gestation do not require authorization for autopsy but rather may be handled according to the rules covering organs and tissues removed surgically. However, the law does not establish a standard for determining whether a fetus has advanced to 20 weeks' gestation, and a parent may object to postmortem examination of a stillborn fetus of less than 20 weeks' gestation, so it may be prudent to require an autopsy consent for autopsies on all fetuses regardless of age. Stillbirths of 20 weeks' gestation and beyond require a fetal death certificate, and the usual laws related to disposition of the body pertain; it is our policy to send all autopsied fetuses to the medical facility's usual storage area for bodies, even if the body originated from an operating room or delivery suite.

In cases in which the dead are unclaimed and without a will or other instructions concerning disposition of remains, designated public officials are usually given jurisdiction. If the next of kin are not identified following a thorough search lasting a length of time specified by law, the responsible official may authorize an autopsy at the request of the decedent's physician. An individual of legal age who is an acquaintance of the deceased and is assuming responsibility for burial may be allowed to authorize autopsy under the laws of some states.

The enactment of anatomic gifts acts and related laws provides a living person with the authority to will his or her body or its parts for transplantation, anatomic instruction, or research. Included in the statutes of many states are provisions for allowing individuals to authorize specific disposition of their remains, including postmortem examination. However, in a majority of these states, an individual's directives regarding autopsy or interment, or both, may be nullified by the objection of the legal next of kin after death. Before death, the decedent may indicate objection, and in some jurisdictions this is sufficient to prevent routine postmortem examination. Some statutes include provisions stating that consent from only one of several persons with custody of the remains is sufficient. In such cases, the wishes of the relative accepting responsibility for burial are often given preference. Because disposition of a dead body requires timely action, failure of an individual to assert these rights constitutes a waiver of the right. When a party waives these rights, he or she cannot also allege wrongful autopsy. However, some statutes clearly indicate that objection by another person with equal right of custody may preclude an autopsy. Thus it seems that a pathologist should seek local legal guidance, such as from the health care organization's risk management group, before proceeding with a postmortem examination in which he or she is aware of conflicts among equal next of kin.

Acceptable methods of documenting consent also vary. Some jurisdictions require an original signed and witnessed written document, whereas others also accept consent in the form of a telegram or facsimile transmission. In certain circumstances, some states accept witnessed telephone authorization. For example, Florida accepts witnessed telephone consent when written permission would cause undue delay in the examination. In Indiana, witnessed telephone consent may replace written authorization when the legal next of kin is outside the county where death occurred. In other states (e.g., California), telephone consents must be recorded on tape or other recording devices. However, given the ease and ready availability of authorization obtained through facsimile when the consent cannot be obtained in person, many institutions accept authorization only on an approved institutional consent form.

Unlike the consent obtained by a physician before performing a medical procedure on a living patient, the consent for postmortem examination is not usually obtained by the individual responsible for the autopsy. Why is this so? First, it is the decedent's clinician who has the closest rapport with family members and is best positioned to approach the next of kin with the sensitivity that the situation requires. Second, the clinician is probably present at the time of death; he or she notifies the family of the event and helps the family begin dealing with the legal responsibilities that accompany the death of a relative. Finally, except in situations in which the family actively requests a postmortem examination, the clinician is usually most persuasive because he or she is interested in the answers to unresolved clinical questions. Although all these reasons explain the situation of consent through proxy, the pathologist is potentially vulnerable to an improperly obtained informed consent. For these reasons, institutions may elect to require stricter criteria for autopsy consent than required by state law.

Some institutions have sought to improve the autopsy consent process by establishing offices of decedent affairs composed of individuals trained to support the family and discuss issues surrounding death, including not only postmortem examinations but also organ and tissue donations and interment. Occasionally, pathologists provide preautopsy consultations to the next of kin in order to discuss the autopsy procedure, removal and retention (or return) of organs, and other questions that family members might have about the examination. It is best practice to make note of such consultation in the autopsy records.

Regardless of whether physicians or other health care workers obtain the authorization, the autopsy consent form should include an adequate description of the procedure and provisions for retention of fluids, tissues, organs, and prosthetic and implantable devices as deemed necessary by the pathologist for diagnostic, scientific, educational, or therapeutic purposes. The autopsy consent should state, and the individual consenting to autopsy should be informed of, the eventual appropriate disposition of these materials by the pathologist or hospital. The College of American Pathologists has provided a sample autopsy consent form ( Fig. 2-1 ).

Hospitals serving large numbers of patients who do not speak English should provide written translations of the autopsy consent form. We find it helpful to provide these on the back side of our consent form. In an age of increasingly powerful methods of genetic analysis, autopsy consent forms may need modification to ensure that the pathologists, the guardians of human tissues removed for diagnostic purposes, maintain strict confidentiality not just for the patient but also for his or her descendants, who may have inherited similar genetic risks for disease.

Identification and Disposition of the Deceased

Before beginning an autopsy, the pathologist must ensure that the body is correctly identified. Typically, dead bodies are identified by means of a tag on the great toe that lists the deceased's full name and perhaps other information. Deceased hospital patients may be identified by bracelets placed around their wrists or ankles that contain both their name and a unique hospital identification number. Before beginning the prosection, it is our practice to have both the pathologist and the assistant perform a “time out.” Patient identity is confirmed by matching the patient identifiers to the autopsy consent form, and any restrictions placed on the examination are noted. A simple checklist is signed by both individuals, and this document, along with a photocopy of the consent form, is kept permanently as an attachment to the final report held in our departmental archives.

Autopsy personnel should be aware of their medical facility's policy and procedures regarding handling of a death and disposition of a decedent's body. This usually includes policies for (1) physicians regarding pronouncement of death, documentation for death certification, and coroner notification; (2) nursing regarding notification of various ancillary services and preparation of the body for transfer to cold room storage, including proper identification; and (3) transport, storage, and tracking of the body. Autopsy procedures must comply with such policies, and any questions regarding logistics should be directed to the appropriate supervisor, often either a nursing supervisor or decedent affairs officer. Retention of organs, fluids, and many medical devices is expected after an autopsy, but it is unlikely that any personal effects should be retained by the autopsy service after a nonforensic autopsy.

Medical Examiner/Coroner Cases

By statute, a medical examiner or coroner may perform or authorize others to perform a postmortem examination without liability if the procedure is performed in good faith and without negligence and does not wantonly disfigure the body. Although all states sanction autopsy in suspected criminal cases, they vary on authorization for other circumstances or situations. Box 2-2 lists death circumstances that should be reported to the medical examiner or coroner. The office to be notified depends on the location of the body where death was pronounced rather than the location of any earlier events.

It is our policy that at the time of a patient's death, a member of the team of physicians who cared for the patient report the case to the medical examiner's office or certify that the medical examiner need not be consulted. Sometimes authorization for autopsy is obtained without appropriate notification of the legal authorities. In such situations, the pathologist assumes equal responsibility for properly notifying the medical examiner. This has particular legal consequence for the pathologist. A study by Start and colleagues indicated that clinicians have considerable difficulty recognizing the full range of cases that require notification of a medical examiner or coroner. Therefore, at any stage of an autopsy—review of the medical history, prosection, or microscopic examination—at which a pathologist recognizes issues or findings that indicate that the case should be reported, it is the pathologist's obligation to notify the medical examiner or coroner. This applies equally in cases previously released by the authorities if new discoveries might place the case within their purview. Finally, notification should be made immediately at the time of discovery, not after completion of the dissection or autopsy report. As a common courtesy, the responsible pathologist should inform the physician and family of the deceased of any changes in circumstances.

Public Health, Public Records, and Patients' Confidentiality

Health care institutions and employees must protect a patient's right to privacy and confidentiality—even after death—unless excepted by law. Exceptions occur with communicable diseases because the responsible physician or health care worker has a legal or ethical obligation to notify public health authorities, warn endangered third parties such as sexual partners or other close contacts, advise health personnel involved with the care of the patient, and alert funeral directors or others who might have contact with infectious tissues or fluids. In the United States, state laws stipulate which diseases physicians must report to public health agencies. Thus the pathologist has a legal obligation to report cases when certain infectious diseases come to light at autopsy. Diseases that are deemed notifiable vary slightly from state to state. However, state laws are influenced by input from the Centers for Disease Control and Prevention (CDC), which makes annual recommendations for the list of nationally notifiable diseases ( Box 2-3 ). Most state public health agencies voluntarily report nationally notifiable diseases to the CDC.

Among patients, physicians, public health officials, and the courts, acquired immunodeficiency syndrome (AIDS) raises significant questions and concerns regarding rights to privacy and confidentiality of patients and patients' relatives and has been the subject of specific legislation. These laws vary widely among states, and the pathologist performing autopsies should be familiar with the specific local statutes. In general, two documents are of concern for the autopsy pathologist: the autopsy report and the death certificate. Autopsy reports prepared in the setting of a hospital practice are legally protected as part of the confidential medical record. However, in some states, autopsies reported by a medical examiner become part of the public record. Likewise, the public may gain access to causes of death listed on death certificates. For these reasons, the Council on Ethical and Judicial Affairs of the American Medical Association recommends that infection with human immunodeficiency virus or AIDS appear in the autopsy report only when it is relevant to the patient's cause of death. Others suggest that government offices adopt a two-part death certificate that includes one part for interment and immediate legal purposes and another for medical certification. This would provide greater privacy to the family of the deceased.