This is a profound victory for Medical Examiners and Coroners, and is one small step in stopping the increasing criminalization of our profession. It has always been interesting to watch people’s perceptions of my work as a Medical Examiner — they are both fascinated and repelled. Both reactions are understandable, but unfortunately both are dangerous when people pander to them.
Pandering to the fascination is dangerous because it leads to unrealistic expectations of what we can do. The infamous “CSI effect” (though studies have indicated that it is overstated) can lead jurors to expect that we should do unnecessary and expensive tests on cases that don’t require it, and further that we should be able to provide exact answers to questions when we cannot. A classic case is that of “time of death.” In the movies, the ME looks at the body and says “he clearly died between nine and nine-thirty last night.” It never works that way. The traditional methods of determining time since death (cooling of the body, rigor mortis, livor mortis, etc), are filled with error.
Consider rigor mortis. Rigor mortis is the stiffening of the body after death. It is the result of the particular biochemistry of muscles. It turns out that the molecules that make muscles contract act like a ratchet — there is one molecule that is a long string with teeth on it, and another that is a hinged arm that catches and pulls those teeth. The important thing to note is that *both* the pulling of the teeth *and* the release of them requires energy. Thus, while it takes obvious energy to, say, flex your arm, it *also* takes energy to relax it and allow the arm to fall. The use of that energy requires oxygen (by the generation of a high energy molecule called adenosine triphosphate, or ATP), which the cells get from the bloodstream. In addition to the oxygen in blood, muscles also maintain their own limited supply of oxygen in the form of myoglobin. When the body dies and blood flow stops, the muscles continue to use that myoglobin to allow the formation of the energy molecules that power the cells, both to maintain the cellular structure and to allow movement of the limbs.
Of course, the nerves are no longer telling the muscles to move once a person is dead, but an observer can passively cause them to move by lifting the limbs and moving them. That movement will use energy from that limited supply. After awhile, that limited supply is gone, and the muscles become stiff — there’s no energy to disengage that ratchet mechanism. The muscles remain stiff until the ratchet itself starts to fall apart as part of decomposition, at which point the muscles relax.
Consider all of the things that are involved here: the storage of energy, the use of energy, the pace of cellular metabolism, etc. All of these have a lot of variables. If a person had been exercising (such as running away from or fighting an assailant), then there will be less energy stored. If it is hot, then all the cellular processes speed up; if it is cold, then they all slow down. If the body is clothed or obese, it will cool more slowly, and thus the cells will stay more active and use up energy faster. Toxins and drugs can affect it. Disease can affect it. And on and on and on.
Thus, the use of rigor for the determination of time of death is a broad estimate, as are the other indicators. Most Medical Examiners don’t give an estimate of time of death based purely on these features. Instead, they ask “When did someone last see him alive?” and see whether or not that’s consistent with the changes. If someone says “Yesterday” and the body is fully skeletonized, then it’s probably inconsistent. That 15-minute window they give you on Law and Order simply doesn’t exist. Unfortunately, sometimes juries think it does, and will misjudge evidence when they hear it.
Pandering to the revulsion, however, is even worse. It’s worse because it misrepresents our motivations and gives the absolutely wrong impression about what we do. And the legislation that panders to it is destroying forensic medicine in the US. Why? Because it, in a slow and creeping manner, is criminalizing what we do.
The best example is the so-called “Dale Earnhardt” law in Florida, which makes it a class D felony for Medical Examiners to share images of cases with each other. The law arose from a FOIA (or FOIA-equivalent) request for autopsy photographs of Dale Earnhardt after his NASCAR accident. Understandibly, the family did not want those photographs used for exploitation. However, the law was written so that Medical Examiners could not easily use cases for teaching and certainly not for research or publication. The law has, I believe, been tweaked, but the bottom line is that it has had a profoundly chilling effect on forensic pathology education and research in Florida. Why? Because even if the law is written fairly liberally, Medical Examiners will choose to be “safe than sorry,” which means that there is no reason to stick our necks out. Even if some of the things that Medical Examiners shy away from may be within the line of legality, who needs the hassle of being investigated or sued?
I have had colleagues in Florida ask me for case illustrations for their lectures and testimony because they believe that they cannot legally use their own case photos. In a recent case of alleged malpractice against a Medical Examiner, *neither* the accusers nor the target of the allegations were allowed to show the photograph that would have trivially answered the issue at hand.
Other laws in other states have essentially made all research impossible other than datamining old cases for statistics. The only way that we can do research is somehow contrive the process as part of an investigation. I personally have some very intriguing findings involving child abuse that I am sitting on simply because I am not sure of legal liability issues for performing some of the tests I performed. I don’t believe I did anything illegal, and can justify everything I did as part of my investigations, but why risk the hassle? If I publish, I might have a problem. If I don’t, I know I won’t. The choice is simple. The legislatures of these states have simply determined that they would prefer to have unsolved child homicides and pander to the hyperbole of the press.
After all, it’s *easy* for a legislator to propose a law limiting what we do. Who *really* cares about advances in forensic medicine — it’s an abstract kind of thing that *other* states can do. On the other hand, a family member tearfully complaining that their loved one was some how abused by having a piece of tissue tested after their death makes great press and great politics.
A new twist on this is the issue of organ retention. In many postmortem examinations, the significant pathology is not obvious at the time of the initial dissection. Instead, the tissues must be treated with preservatives and dissected or analyzed using special procedures. This takes time. In order to allow the family to bury its dead, we release the body but keep the organ in question for examination.
This is particularly true of the brain. In life, the brain is a gelatinous organ with the consistency of Jello. It is essentially impossible to do fine dissection on a fresh brain. In most cases, where the brain is obviously not involved with death (such as a gunshot wound to the chest), we just slice through the brain to look for something unusual.
In cases where important pathology may be in the brain, however, it is often necessary to “fix” the brain prior to dissection. In this, we place the brain in a large container of formalin and allow the formalin to diffuse into the tissue. Because the formalin diffuses in very slowly, we commonly allow the brain to fix for up to six weeks before beginning the dissection. During the dissection, the brain is reduced to numerous small fragments, some of which are processed for histology and the rest, at most places, incinerated.
A family took exception to this in Ohio, and a class action lawsuit was brought against the Ohio Coroners. In a clear example of good sense, the Ohio courts found in favor of the Coroners. The plaintiffs are now appealing to the federal courts.
As always, the Coroners are being cast as people who don’t care about the dead or their families and who are doing this out of some sort of spite. They ignore that we do this for a *purpose.* An editorial in the Columbus Dispatch plays on that theme and notes:
Coroners fear that giving such property rights to families could impede law-enforcement investigations and delay autopsies. This need not be the case.
Criminal cases should take priority, and that can be spelled out in legislation.
This ignores the fact that in many of these cases in which the organs are retained to *determine* whether or not it is a “criminal case.” If we knew beforehand, we might not need to do the study. Even notification issues are not as trivial as many seem to think. Issues of *who* is really next of kin are often nontrivial, both in cases where none is known, but also in cases of atypical families where the determination of who really is the next of kin ends up in court. What happens when we notify the “wrong” next of kin? These issues arise a lot; the Medical Examiner office is not the place to make those determinations, and we should not be made liable when we fail after acting in good faith.
We are trying to answer questions about cause and manner of death important to the law, important to public health, and important to the families themselves. We care deeply about these issues and about the families and the dead. But more, we care about the truth. We believe we owe it to the victims and to society to provide the best answers we can. And, unfortunately, sometimes that means that we have to do things that the next of kin don’t like.
I remember when I was a medical student many, many years ago. I was in a jurisdiction where the next of kin had to give permission for an autopsy at all — even a forensic one. As you probably know, the next of kin are frequently the culprits in homicides of family members. When this is the case, they are unlikely to consent to an autopsy. I had a patient who suffered “the dwindles” — slow weight loss, uncertain peripheral neuropathy, headaches, nonspecific mental symptoms, etc. He died shortly after admission.
I and a friend suspected arsenic poisoning, but the next of kin refused an autopsy. I snuck into the morgue, collected a hair sample, and tested it myself. It was full of arsenic. I asked about what to do, and was told that what I had done was likely illegal, and was not admissible in court in any case. It was clearly a murder, but the law about autopsies did not allow investigation.
We have come some ways in the past 30 years away from that, but the movement is now to return to magical thinking about forensics, play on that stereotype of the Medical Examiner as some sort of ghoul that lives in the basement, and applaud the criminalization of forensic medicine. A few months ago, I was vigorously criticized for doing an extensive subcutaneous dissection on a baby (where the skin is largely peeled away to look for underlying bruises) as “mutilating” the baby so that she couldn’t have an open-casket funeral. In fact, a good funeral home could have prepared the baby for an open casket funeral; it simply didn’t want to do the work. But even if the claim were true, and while I certainly understand the desire for such a kind of funeral, I believe that the mother’s anger would have been better directed at the boyfriend who beat the child to death. Instead of attacking me for providing evidence of that beating, I believe that it serves a better purpose to use that data to prosecute the murderer.
These attacks on my profession are now occuring as those same lawyers who want to inhibit research and testing complain about the quality of “science” in forensic medicine. Most Medical Examiners agree that we need more research in forensic medicine. Unfortunately we are not funded for it — most Medical Examiner’s offices are local offices with poor funding, and the medical establishment prefers to fund other initiatives. But, in fact, many Medical Examiners would love to do independent research even on their own time and on their own dime; many projects would not require a great deal of money. However, we face the further hurdle that most such projects are now illegal — to the point that even sharing data between pathologists is a felony — all because of pandering to the kind of hyperbole that legislators, the press, and the public find so appealing.
You can’t have it both ways. You can’t complain about the state of science in forensic medicine, and place such hurdles to investigation that it is either financially ruinous to a small office, or illegal altogether.
We care deeply about those victims we investigate. We care deeply about their families. When members of our families die, we share the same experience. Unfortunately, sometimes you can’t serve both the truth and the feelings of survivors. We try to accomodate families as much as we can, but this trend to remove discretion from us, and to criminalize our basic work will do a *real* disservice to the families of victims. It limits of what we can do now, and by stopping the progress of forensic science it keeps us from providing better answers in the future.