Saturday, 3 October 2009

Tighter requirements on medical examiners are blocked in Texas

An onslaught of news reports about mistakes in medical examiner offices is rattling the foundations of the U.S. criminal justice system.

Critics are having a field day pointing out blunders — children’s eyes misplaced, bodies mismatched, skeletal remains missing. "Abuses are going on all over the country," said Barry Scheck, co-founder of the Innocence Project.

Pick a state, find a scandal:

The Boston medical examiner’s office sent the wrong bodies to funeral homes and had a body cremated before police could determine whether a murder had taken place.

A Mississippi forensic pathologist is being sued over his testimony that was key in convicting two men later exonerated by DNA testing. The pathologist was conducting about 1,500 autopsies a year.

The Oklahoma City medical examiner’s office had its accreditation yanked this summer because of dozens of deficiencies, and a grand jury reported that the office mishandled items that could have been used as evidence in criminal cases.

The Tennessee Medical Board found a state medical examiner guilty of 18 counts of misconduct, potentially compromising hundreds of convictions. The violations included botched work, tampering with evidence and sloppy records, with a heap of callousness added to the mix.

A report by the National Academy of Sciences, presented to Congress this spring, found pervasive deficiencies nationwide. It recommends modernizing the medical examiner’s office by establishing performance standards and quality-control measures and testing the scientific validity of forensic methods. It also calls for creating a national watchdog agency that could set education standards, require certification of facilities, and develop and implement new technologies.

A group of medical examiners themselves recommended minimum national standards, calling for such changes as requiring that autopsies be conducted by those who have been trained in anatomic and forensic pathology.

But so far, the resources have not been available to implement major reforms identified by the scientific community. And in Texas, a lack of political will and divisions among pathologists have torpedoed efforts to make more basic changes.

As errors have come to light, some states are bringing more scrutiny to pathologists’ work. A new Tennessee law requires that autopsies be performed in medical examiner offices that conform to standards of the National Association of Medical Examiners. Washington state is looking at a proposal requiring such standards for autopsies of infants and other young children. Florida has a commission tasked with scrutinizing any abnormalities in the work of its medical examiners.

"It . . . is just a matter of having the political will and proper use of resources," said Dr. John Howard, NAME’s president.

Texas hasn’t budged, though. Accreditation is voluntary, and only six medical examiner offices in Texas have the nod.

This past session, the Legislature approved a bill that would have required that medical examiners and their deputies be board-certified in anatomic and forensic pathology. It also would have given medical examiners the say-so on who can attend autopsies and the power to subpoena law enforcement and medical records.

Sen. Jeff Wentworth, R-San Antonio, who introduced the legislation, cited a need for "more accurate, precise and reliable autopsies and evidence" in courts.

But even though the changes had support from the Texas Conference of Urban Counties, which had criticized past legislation affecting medical examiners, Gov. Rick Perry vetoed the bill containing the measure. His office did not respond to requests for comment.

"It’s back to square one," said Bexar County Chief Medical Examiner Randall Frost, who urged Wentworth to introduce the legislation.

In 2005, the state created the Texas Forensic Science Commission to hear complaints about shoddy work. But medical examiners do not fall under its jurisdiction, said Edwin Colfax at The Justice Project. Only crime labs do.

Medical examiners have "been given a pass because we’re dealing with doctors," Colfax said.

Crime labs and medical examiner offices are totally separate issues, said Lawrence Coleman, spokesman for state Sen. John Whitmire, D-Houston, who spearheaded crime lab reforms and is chairman of the Senate Criminal Justice Committee. Coleman referred questions about medical examiners to the Senate’s Health and Human Services Committee.

But that committee doesn’t address issues with medical examiners, said Dave Nelson, spokesman for committee Chairwoman Jane Nelson, R-Flower Mound. "The only thing we control is who gets a medical license, the criteria and who can practice healthcare," he said.

A question of resources

At the root of many disagreements about reforms are resources.

Wentworth’s original bill, like a similar effort in 2003, would also have required that all Texas medical examiner offices be accredited by NAME or a similar agency, a process that the National Academy of Sciences report hails as a benchmark for improving death investigations.

The Texas Conference of Urban Counties is vehemently opposed, saying it will push up costs and take away taxpayers’ options.

"Accreditation did not look to the quality of an autopsy," Executive Director Donald Lee said. "It looks to the size of the budget and the quality of facilities provided to medical examiners."

He huffs about such standards as providing separate men’s and women’s showers at medical examiner offices.

There’s also a fierce debate among pathologists over accreditation because it would cap the number of autopsies that medical examiners could complete in one year.

If forensic pathologists were limited to 350 per year, as suggested by NAME, they couldn’t keep up with the workload. Some medical examiners have predicted mayhem at morgues and criminal detention centers. Such a move, some say, would slow the flow of criminal prosecutions, force families to wait longer for answers and impede insurance payments.

Frost says those who oppose the accreditation don’t want to see improvements. "This whole business about not getting enough people is what people always say when they’re trying to fight against better standards," he said.

Improving standards would attract more physicians to forensic pathology, Frost said, easing the shortage and the workloads.

Now, forensic pathology is considered "blue-collar medicine" that no one wants to pay for or touch, said Dr. William Rohr, the Collin County medical examiner.

The National Academy of Sciences estimated that the U.S. needs 1,000 forensic pathologists, based on each conducting an optimum 250 autopsies a year. Only about 400 to 500 are practicing, the academy reported.

Its remedy: providing money to support pathologists seeking forensic fellowships and forgiving medical school loans for pathologists who work full time in a medical examiner office for a reasonable period of time. It notes that many forensic pathologists earn $150,000 to $180,000 a year, much lower than most beginning hospital-based pathologists.

Other concerns

Voluntary accreditation through NAME would provide some assurance of quality, supporters say.

But the standards are bare-bones, Howard said. No fluff.

NAME inspectors review a 300-item checklist. Included are the separate showers for male and female employees but also sufficient space, equipment and facilities for the volume of deaths; a proper ventilation system to control odors and fumes; adequate lighting; a program to control blood-borne pathogens; and body-handling procedures that ensure the integrity of evidence.

In Texas, medical examiner offices in Harris, Tarrant, Nueces, Dallas, Travis and Bexar counties have been accredited.

Across the nation, 54 medical examiner offices have NAME accreditation, according to the National Academy of Sciences report.

Certification itself doesn’t signify that a morgue is problem-free, Howard cautioned. For example, a morgue can have major deficiencies, such as unqualified staff and excessive workloads, and still receive preliminary accreditation.

Tarrant County Chief Medical Examiner Nizam Peerwani cites other shortcomings: Accreditation doesn’t ensure that case files are reviewed, and it doesn’t ensure that autopsy reports are thorough and appropriate. Only peer reviews can do that.

"Accreditation is not geared at checking the quality of work," he said. "They look at process. What they’re looking at is whether I have a proper ventilation system."

Another weakness: Once you’re accredited, you’re home-free for five years. NAME doesn’t check up. Five years ago, the medical examiner’s office in Oklahoma City had accreditation. This year, efforts to renew failed because of dire staff shortages and other lapses.

And NAME doesn’t have the power or resources to punish those who are practicing without proper licensing, aren’t supervising interns or are botching autopsies.

Frost said the goal isn’t to "ding people and say, 'You’re not good enough to join.’ The idea is just to improve quality."

Over time, Howard said, NAME will toughen its standards. "Rome wasn’t built in a day," he said.

Pressure to accelerate changes could come from the public, which finances medical examiner offices. But the public by and large doesn’t have access to information that would point to problems.

Texas lacks an oversight agency with information about medical examiners.

NAME inspection reports could provide the public with some insight. In Spokane County, Wash.,Howard said reports of inspections of his morgue are presented in public to county commissioners as a way to lobby for more funding, if necessary.

"We very much want them to know what the inspection found in every detail," Howard said.

Of the six Texas morgues that NAME reviewed in the last five years, the Dallas and Travis county medical examiner offices had the inspector’s report on file and immediately provided it to the Star-Telegram when asked. Harris County refused to obtain it, even though taxpayers pay for the inspection.

Dr. Randy Hanzlick, who is chief medical examiner in Fulton County, Ga., and who inspects medical examiner offices nationwide for NAME, believes it may take major problems with evidence and scandals over embarrassing revelations to bring about any real change.

But Frost said the stakes are too high to continue business as usual.

"Medical examiner testimony puts people in prison, puts people on Death Row," he said. "I think it’s important that we get that right."


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